The U.S. Court of Appeals for the Eleventh Circuit affirmed a district court's decision to excuse a juror in an insurance coverage case brought by a policy holder against her auto insurer based on evidence that the excused juror was “dangerous and disruptive.”

Lisa Bostick sought underinsured motorist benefits from her insurer, State Farm Mutual Automobile Insurance Co. The company denied her claim, and Bostick sued.

After a nine-day jury trial in U.S. District Court for the Middle District of Florida, the jury retired to deliberate at 3:46 p.m. on a Friday.

At 6:20 p.m., a court security officer reported a female juror complained about a male juror being “forceful.” The officer gave the district court a note from the male juror who requested “input” about what to do because “we all are not agreeing on the claim,” “they feel that they can do this without my vote,” “Not [sic] is going to change my vote,” and “them harassing me is just making it no better.”

With the parties' assent, the district judge instructed the jury about “the importance of respecting each other and working with each other,” asked that they “decide as a group” whether “to continue deliberating this evening …  or … to come back on Monday morning,” and allowed the two jurors to voice their concerns to him separately in his chambers.

The district judge told the parties that two jurors were “having some disagreements” about “the way [opinions were being] expressed” and “the language that was used” suggested a “lack of respect.” The district court also stated the juror who submitted the note reported he could not return Monday due to “an appointment” that he did “not want to move … again.” The district court posted a court security officer outside the jury room and offered to instruct the jury to continue its deliberations.

While the parties discussed the matter, a third juror asked to speak with the judge. The third juror reported the juror who submitted the note had disagreed with the other six jurors about “something” and “threatened to swing” at some jurors. When the district court shared this report with the parties, counsel for Bostick thought it “prudent … to allow [the jurors'] temperaments to calm” over the weekend and, if the juror who sent the note returned “Monday and continue[d] to create the disturbance,” decide then whether to excuse him from the jury.

The parties agreed to allow the jury to return Monday.

The district court recalled the jury to the courtroom and informed them that, due to the late hour, they could resume deliberations Monday. The district court asked if any jurors could not return, and the juror who sent the note raised his hand. After further questioning, he said he could come around 11 a.m. At the request of the other jurors, the district court decided to resume deliberations at 9 a.m.

All seven jurors returned Monday morning. At 9:40 a.m., the district court informed the parties that further problems required interviewing each juror and court security officers had been posted outside the jury room.

The district court stated it had “already received several notes” that morning. Two jurors wrote the man who sent the note Friday confronted a male juror “chest to chest and threatened to punch him out,” and a juror wrote that the man “used racist language.” The district court also read aloud a note from the man saying the jury thought “that as a group they have the right to treat me, talk to me and do whatever to me, they got that … wrong” and “it's up to me … to remind them that that's not going to happen.”

When interviewed separately, the jurors said the man who sent Friday's note insulted and alarmed them during their deliberations Friday and they “did not want to go there” Monday. Five jurors speculated that his behavior was due to his embarrassment in having the other jurors vote against his request for a different daily trial schedule and due to not being elected foreman.

Three jurors stated that, soon after deliberations began, he disagreed with the other jurors, was belligerent and goaded jurors to “swing on me.” Four jurors stated he used obscenities and two said he was “verbally abusive,” called each juror “stupid” in a different way, referred to the women as “bitches” and used “racially abusive” language and “slurs,” such as calling the Caucasian jurors “white asses.” And two jurors stated that everyone was frightened of him because he was “big” and caused female jurors to cry.

The jurors also stated that he was uncooperative. Three jurors said he interrupted and ignored jurors who tried to discuss the case and he refused to deliberate Monday morning. Four jurors said he laid on a couch during most of their deliberations, and he rebuffed fellow jurors' repeated requests for him to explain his decision. When urged several times to consider the law, he responded, “I don't care.” One juror recounted him saying, “This is what I want, and either you guys accept it or it's going to be a mistrial.”

When questioned by Bostick's attorney, one juror volunteered that “we feel that six of us can definitely … finish the deliberations in 15 minutes” without the other juror, and another agreed “the six can reach a verdict pretty quickly.”

Before the juror entered the courtroom, counsel for State Farm suggested excusing the man for “juror misconduct” under Federal Rule of Civil Procedure 47(c) based on the jurors' statements “that he's physically intimidating to the other jurors, that he's intentionally disregarding the law, that his behavior is motivated out of malice.”

Bostick's attorney also expressed concerns about his conduct and described the pejoratives he used to refer to women as “horrifying.” But the attorney also asked that questioning continue to ensure the juror was not “being isolated because he's the holdout and they don't like that.” When asked if he had “a position” on excusing the juror, Bostick's attorney responded, “No.”

When the district court questioned the juror, he said he was frustrated on Friday “about … people trying to sway me a certain way.” When asked if he could continue deliberating, the juror answered, “I doubt it. No.” The juror likened his situation to being the one “hammer” that isn't “pounding … the one-ton nail … deeper into the hole until it gets to the point you can't pull it out.” The juror also answered “no” when Bostick's attorney asked whether he would deliberate if “you guys … go back and restart.” The juror denied the stalemate was due to “personalities in the room” and responded affirmatively when asked if he had “a cooperative relationship” with the other jurors.

Bostick's attorney objected to the juror's removal, but the district court responded it had to protect the other jurors from physical harm and found it doubtful deliberations could resume in the light of “the words that the women say were used” and the jurors' complaints “about what they perceived to be racist comments.” Bostick's attorney asserted “the seven jurors are still, in theory, capable of deliberating,” but the district court reiterated jurors had stated “they feel threatened” and had been insulted.

The district court then excused the juror and said he was being dismissed “because of the things I've heard that have concerned me” and his use of “an ugly term” to refer to women. When the judge said, “I just can't have people feeling concerned,” the juror responded, “I understand that part.”

The district court told the remaining six jurors that the other juror had been excused and instructed them to “resume your deliberations and try to reach a verdict if you can.”

The jury returned a verdict in favor of State Farm.

Bostick filed a post-judgment motion to interview jurors and later moved for a mistrial, but the district court denied both motions. The district court ruled it had “already allowed counsel to interview each juror,” “it would be redundant to repeat the inquiry,” and there was no reason to disturb the jury's verdict.

After the district court denied Bostick's motion for a new trial, she appealed to the Eleventh Circuit. The Eleventh Circuit affirmed.

In its decision, the circuit court said the district court was entitled to find the excused juror engaged in misconduct. It noted jurors stated the excused juror intimidated them by threatening to use physical violence against them and confronted one juror, belittled them and refused to follow the jury instructions or deliberate.

The circuit court noted even Bostick's attorney described the excused juror's language as “horrifying.” The Eleventh Circuit found the district court had good cause to excuse the juror.

The appellate court rejected Bostick's contention that the excused juror's behavior warranted a mistrial, finding the district court did not remove the juror because he was a holdout but “as a last resort because [it] believed that he was going to physically harm other jurors.”

The court concluded by reiterating the excused juror intimated he would not hesitate to use force and stated he would “remind” his fellow jurors to pay attention to him and he was “too big of a human being” to be overlooked.

The case is Bostick v. State Farm Mutual Automobile Insurance, No. 18-11636 (11th Cir. July 29).

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. Meyerowitz is the Director of the Insurance Coverage Law Center and editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. Contact him at smeyerowitz@meyerowitzcommunications.com.