Bostick v. State Farm Mutual Automobile Insurance Company

Filing 80

ORDER granting in part and denying in part (Doc. # 57 ) Motion in Limine. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/21/2017. (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 is before the Court upon consideration of
Defendant State Farm Mutual Automobile Insurance Company’s
First Omnibus Motion in Limine (Doc. # 57), filed on June 1,
2017. Plaintiff Lisa N. Bostick filed her Response (Doc. #
67) on June 15, 2017. For the reasons below, the motion is
GRANTED IN PART and DENIED IN PART.
I.

Background
After sustaining injuries in a November 14, 2013, car

accident, Bostick filed a state court action against State
Farm for breach of contract in which she seeks recovery of
uninsured motorist benefits. (Doc. # 2). State Farm removed
the case to this Court on June 2, 2016, predicated upon
complete diversity of citizenship. (Doc. # 1).

The case is

set for a jury trial during the Court’s September 2017 trial
term.

At this juncture, State Farm has filed a Motion in

Limine addressing a wide range of trial issues.
II.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009). “The real purpose of a motion
in limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably effect the fairness of the trial. A
court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.”
Id. (internal quotation omitted).
“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing
Royal Indem. Co. v. Liberty Mut. Fire Ins. Co, No. 07-80172CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial

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of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion
means the court cannot determine whether the evidence in
question should be excluded outside the trial context.” Id.
“The court will entertain objections on individual proffers
as they arise at trial, even though the proffer falls within
the scope of a denied motion in limine.” Id.
The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998; see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003) (“Inherent in this standard is the firm
recognition that there are difficult evidentiary rulings that
turn on matters uniquely within the purview of the district
court, which has first-hand access to documentary evidence
and is physically proximate to testifying witnesses and the
jury.”).
III. Discussion
1. Payment of Premiums and “Customer Loyalty”

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State Farm argues that Bostick “should be prohibited
from making any statement suggesting that [she] properly paid
insurance premiums, or that she had always been a ‘good
insured’ or loyal to State Farm or similar arguments.” (Doc.
# 57 at 2). Bostick has no objections to this request. (Doc.
# 67 at 2). Therefore, this portion of State Farm’s motion in
limine is moot.
2. Limiting Before and After Witnesses
State Farm contends that Bostick’s use of ten before and
after

witnesses

will

be

cumulative,

excessive,

and

will

unnecessarily protract the proceedings. (Doc. # 57 at 3).
Bostick

responds

that

each

witness

is

relevant

to

establishing the presence of different symptoms from her
alleged brain injury and how she has changed after the
accident. (Doc. # 67 at 2-3).
During the Pretrial Conference scheduled for August 17,
2017, the Court will determine whether Bostick’s use of ten
before and after witnesses is cumulative or relevant. Based
on the limited briefing, the Court does not see a reason to
limit the number of witnesses for either party. The Court
therefore denies State Farm’s motion in limine on this issue,
but will adjust this ruling if supplied with information that
justifies the curtailment of such witnesses.

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3. “Golden Rule” Arguments and “Reptile Strategy”
State Farm moves to preclude Bostick from utilizing
“Reptile Strategy” or making “Golden Rule” arguments. (Doc.
# 57 at 5). As explained by State Farm, “[t]he premise of the
Reptile Strategy is rooted in psychology – that jurors, as
humans, have brains consisting of various parts, one of which
the strategy proponents refer to as the ‘reptilian brain.’
The

belief

is

that

the

reptilian

brain

instinctively

overpowers the cognitive and emotional parts of the brain
when life and safety become threatened.” (Doc. # 57 at 5).
State Farm alleges that Bostick will argue to jurors “that
they have the power to improve the safety of themselves, their
family members, and their community by holding the Defendant
accountable and responsible, and by rendering a verdict that
will

reduce

or

eliminate

a

dangerous

conduct

in

the

community.” (Id.). “Instead of focusing on legal duties and
generally accepted standards of care, the Reptile Strategy
seeks to influence jurors by passion and emotion.” (Id. at
6). Bostick “agree[s] that reptiles do not belong in court”
(Doc. # 67 at 4), and contends that State Farm, in advancing
the Reptile Strategy argument, is unfairly attempting to
undermine the efficacy of her advocacy. (Doc. # 67 at 4).
The Court finds that Bostick should be permitted to “discuss

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applicable legal remedies and their purpose in a way that lay
jurors will understand.” (Id.).

The Court therefore denies

the Motion in Limine to the extent it seeks to limit Bostick’s
counsel from making community and safety arguments that may
trigger an emotional response from jurors.
“The straight golden rule argument -- ‘put yourself in
the shoes of my client,’ clearly has been banned by binding
precedent.” Colman v. Home Depot U.S.A., Inc., No. 1:15-cv21555-UU, 2016 U.S. Dist. LEXIS 121445, at *3 (S.D. Fla. Feb.
9, 2016) (quoting Woods v. Burlington N. R.R. Co., 768 F.2d
1287, 1292 (11th Cir. 1985), overruled on other grounds by
Burlington N. R.R. Co. v. Woods, 480 U.S. 1 (1987)). Beyond
golden rule arguments, State Farm cannot prevent Bostick from
asking the jury to consider community safety standards and
the extent that State Farm allegedly failed to comply with
those standards. See Id. at *3-4. This inquiry is fundamental
to the underpinnings of tort law. Therefore, State Farm’s
motion in limine is granted in part (as to the Golden Rule).
4. Improper Statements and Questions during Voir Dire
State

Farm

argues

that

Bostick

will

pose

improper

hypothetical questions to potential jurors during voir dire.
(Doc. # 57 at 11-12). Bostick agrees that “hypothetical
questions are not appropriate when their only purpose is to

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have jurors indicate in advance what their decision will be
under a certain state of the evidence, or upon a certain state
of facts and to seek a commitment from jurors if certain facts
are shown.” (Doc. # 67 at 6).

Thus, it appears that the

Motion in Limine is moot on this issue.
The Court takes the opportunity to remind the parties
that voir dire questions are scheduled to be sent to the Court
on August 10, 2017, per the Amended Case Management and
Scheduling Order. (Doc. # 41 at 2). The parties are instructed
to include a single set of jointly-proposed questions for the
Court to ask the venire during voir dire in the Joint Final
Pretrial Statement. If the parties cannot agree as to the
voir dire questions, objections should be marked clearly in
the joint statement. The Court will address any objections to
proposed

voir

dire

questions

either

at

the

Pretrial

Conference or the morning of trial.
5. Inflammatory Conduct
State

Farm

seeks

to

prevent

Bostick’s

counsel

from

“slamming down . . . exhibits, and [making] angry or disgusted
facial expressions.” (Doc. # 57 at 12). Bostick agrees to
“abide by the rules of professionalism and ethics.” (Doc. #
67 at 7). State Farm’s motion in limine to prevent such
inflammatory conduct is therefore moot.

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State Farm further seeks to prevent Bostick from making
emotional displays to the jury. (Doc. # 57 at 13). If it
becomes necessary, the Court will handle these types of
objections during trial. The Court reminds counsel that the
Local Rules contain requirements for decorum and apply to the
situation presented as follows: “Counsel shall admonish all
persons at counsel table that gestures, facial expressions,
audible comments, or the like, as manifestations of approval
or disapproval during the testimony of witnesses, or at any
other

time,

are

absolutely

prohibited.”

Local

Rule

5.03(b)(16), M.D. Fla.
6. Personal Life Experiences and Beliefs
State
witnesses

Farm
from

seeks
making

to

prevent

“any

Bostick’s

statement

counsel

reflecting

and

his/her

personal belief in the justness of the cause, the credibility
of witnesses, or his/her personal knowledge of the facts in
issue.” (Doc. # 57 at 13). The Court grants State Farm’s
request. See United States v. Corona, 551 F.2d 1386, 1391
(5th Cir. 1977).
State Farm also seeks to prevent Bostick’s counsel from
making any reference “to their own medical issues or medical
assistive devices, such as: hearing loss and the use of
hearing aids, memory loss and the use of memory cues, and/or

8 

orthopedic assistive devices.” (Doc. # 57 at 13).

Alejandro

Blanco, Esq., Bostick’s counsel, uses hearing aids. He posits
that he “should be allowed to explain to the jury why his
loss of hearing may impact his understanding and reaction to
the proceedings.” (Doc. # 67).

At this preliminary juncture,

the Court sees no reason why counsel should be barred from
giving a short and to the point explanation of their use of
a hearing aid, or other device, if that issue presents itself
during the trial.

The Court will address this during the

trial, if it comes up, and State Farm can make objections at
that time.
7. Bostick Leaving the Courtroom
Bostick has made known her intention to vacate the
courtroom during certain testimony (for example, medical
testimony regarding her alleged injuries) because she finds
the

testimony

to

be

stressful

and

personally

damaging.

Bostick would like to alert the jury that she is leaving
during the testimony because she believes that hearing such
testimony would be emotionally harmful.
There are no restraints on Bostick’s personal freedom.
She has the option of leaving the proceedings at any point in
which she is too troubled to hear the testimony.

However,

the Court encourages Bostick to leave in a non-disruptive

9 

manner that shows respect for the proceedings and the jurors.
As for providing an explanation to the jury regarding her
absence from the trial, the Court invites the parties to come
up with language that reflects the situation but does not
call attention to any item of evidence nor prejudice either
side.

The parties are directed to work together to come up

with appropriate language on this issue and should advise the
Court

of

their

suggested

language

during

the

scheduled

Pretrial Conference.
8. Impermissible Hearsay Statements
State Farm recounts numerous instances during Bostick’s
deposition and examination under oath in which she made
hearsay statements.

As an example, State Farm includes the

following statement: “I would write the answer on the board
and the students would say, Dr. Bostick, that’s not the right
answer.” (Doc. # 57 at 15).

The Court notes that both sides

are represented by experienced trial counsel.

The Court does

not need to address anticipatory hearsay statements, and
State Farm can make appropriate objections to hearsay during
trial.

State

Farm’s

motion

in

prejudice.

10 

limine

is

denied

without

9. Spontaneous and Nonresponsive Utterances
State
“spontaneous

Farm
and

seeks

to

prevent

unresponsive

during trial. (Doc.

Bostick

statements

from

and

making

utterances”

# 57 at 17). As an example, State Farm

quotes Bostick’s statement during her examination under oath
that: “See, that’s how stupid I am with this brain I got.”
(Doc. # 57 at 17).
spontaneous

and

Bostick asserts in her response that her
nonresponsive

statements

are

actually

evidence of her brain injury and are beyond her control. (Doc.
# 67 at 9).
Whether Bostick suffers from a brain injury is a disputed
issue.

The Court is charged with maintaining control over

the proceedings, and will be in the best position to address
any unresponsive statements or utterances during the course
of the proceedings. Each witness has a unique manner of
expressing themselves, and this Court is in no position to
define the parameters of a witness’s communication style.
That said, the Court will carefully maintain control over the
proceedings

to

prevent

inflammatory

and

prejudicial

statements being made during the course of the trial.
10. Damages of Non-Parties
Although witness lists have not yet been provided to the
Court, it is anticipated that friends and family members plan

11 

to testify on Bostick’s behalf.

State Farm moves to prevent

non-party witnesses, for example Bostick’s husband, from
testifying

“as

to

how

Plaintiff’s

alleged

injuries

and

damages have affected or impacted” him. (Doc. # 57 at 18).
State Farm argues “such testimony would be irrelevant, and
any relevance it may have should be excluded pursuant to Fed.
R. Civ. P. 403.” (Id.).
Bostick, on the other hand, contends that “the impact
the . . . injuries have had on Mrs. Bostick’s relationship[s]
. . . are certainly relevant to the damages experienced as
emotional distress.” (Doc. # 67 at 10).

The testimony State

Farm identifies has not yet been squarely put before the
Court, and the Court cannot anticipate the nature or extent
of the supposed prejudice to State Farm that such testimony
could inflict.

The better course is to allow the Court to

conduct the Rule 403 analysis during the trial.
11. Bad Faith
State Farm next moves to prevent questioning about its
claims handling practices, or the claims handling in this
case. (Doc. # 57 at 19). Bostick agrees that this is not a
case for bad faith and she will not bring up these issues.
(Doc.

#

67

at

11).

State

Farm’s

accordingly moot as to this point.

12 

motion

in

limine

is

12. Treating Physicians
State

Farm

seeks

to

prevent

physicians

from

testifying

as

Bostick’s

to

treating

causation,

injury

permanency, or cost of future medical care. (Doc. # 57 at
19). The Court has addressed this request in its Order dated
July 5, 2017. (Doc. # 74). The Court declines to reiterate
its prior order and expects the parties to adhere to the
limits set by the Court’s July 5, 2017, Order.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant

State

Farm

Mutual

Automobile

Insurance

Company’s First Omnibus Motion in Limine (Doc. # 57) is
GRANTED IN PART AND DENIED IN PART as articulated herein.
DONE and ORDERED in Chambers in Tampa, Florida, this
21st day of July, 2017.

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