According to a new New York Times piece, the Trump White House is claiming first dibs on the new COVID vaccine that is shipping as I type.
Folks are, predictably, outraged. The people who were dismissive of the virus should be last on line, right? The folks who mocked others for wearing masks should be waaaaay in the back. That folks who engaged in superspreader events, as if they were somehow immune, would get the vaccine first is an outrage.
Their antics, after all, have cost the nation dearly. Their followers believed them. They did everything they could do sow distrust of science. As if this was a blue state problem.
300,000 dead. And counting.
But. And you knew there had to be a “but” didn’t you? You saw the caption to this post. Trump should go first.
There are a lot of people distrusting the vaccine at the moment. Why? Well, partly because some wish to ignore science, some say the virus is a hoax and some because they think political pressure from Trump may have rushed a vaccine to the public before it was proven safe.
But widespread vaccination is critical to stop the virus. And you can’t have widespread vaccination without widespread acceptance.
So Trump and his cronies — who have done everything possible to make this situation worse — getting the vaccine sends a message to people: Science is important, the virus is not a hoax and the vaccine is safe.
The outrage about Trump is duly noted. The irony is obvious.
But the safety of the nation is more important. The sooner the virus is under control the sooner we put those masks in the drawer and start going to ballgames, restaurants and back into the homes of our family and friends. Without fear of illness.
When COVID-19 came to New York, the Legislature moved fast to grant widespread immunity to hospitals and nursing homes for virtually any acts of negligence that occurred, including, obviously, medical malpractice.
The key element of what will entitle medical practitioners to immunity now is whether they were “impacted” by the pandemic. The relevant time period shift in the law is March 7 to August 3rd. And yes, “impacted” is vague.
When this paring back of immunity occurred, I wrote of what the future would bring for any nursing home or medical malpractice suit brought within the key time period:
Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.
But now Gov. Andrew Cuomo has monkey-wrenched the arguments of malpractice defense lawyers throughout the state.
How did he manage to do that? In an interview with CNN, he said that New York’s hospitals “were never overwhelmed” at the peak of the COVID-19 pandemic.
Yowza! So hospital lawyers, defending malpractice cases, will obviously all want to claim their hospital or doctor was “impacted.” But the Governor just said the the hospitals “were never overwhelmed.”
Now you can try to parse the differences between those two phrases, but the ultimate answer will no doubt result in intense factual disputes.
This may well mean that attempts for fast victories on motions to dismiss — asserting that based on the pleadings alone there is no cause of action — can be easily shot down.
But will they be dismissed based on lack of evidence, as happens with summary judgment motions? To grant summary judgment there must be an absence of a factual dispute. Because factual determinations are for juries, not judges.
Any thoughts that such dismissals will come easily should now be out aside. Plaintiff’s bringing actions that fall within the applicable time period will be wise to add claims that treatment was not impacted by the pandemic.
And defense lawyers would be wise not to think that some conclusory affidavit from a hospital administrator will easily win them the day. Because I don’t believe they will.
We will be going someplace in discovery that we don’t usually go: Lawyers will now be looking at who else is in the hospital, what kinds of patients they were, how many beds were filled, etc., all in order to prove that care was (not) “impacted” by the pandemic.
An easy example: Patient goes to a New York City hospital for COVID in late June. Patient needs medication for condition. Wrong dosage is given by young intern who just started out on July 1 — instead of 0.5 mg it is 10.0 mg. Was treatment “impacted” by the pandemic?
Hospital argues that patient was only in hospital due to COVID.
Patient’s counsel argues that hospital was not understaffed and rushing around like chickens without heads at the time. There were, in fact, empty beds and staff available as the pandemic in NYC was slowing down.
The Governor just handed a big fat factual dispute to litigants throughout the state who, perhaps, thought the matter would be easily resolved in favor of medical practitioners.
Discovery may well be going where discovery has not gone before.
Watergate jury, by John Hart. The original hangs in my office.
Yesterday I wrote about the post-pandemic law office, and depositions and court conferences. Today I shift to jury trials.
On Monday, New York’s Chief Judge put out a statement with lots of good news, including the fact that experimental jury trials have started. For the courts outside of New York City, 70 criminal and civil trial have now been scheduled, and many completed.
And jury trials are to start next week in New York City. As per CJ DiFiore:
In New York City, our current plan is to restart civil jury trials next week, although we are carefully monitoring the COVID metrics in different areas of the City and have not yet finalized decisions on the number or locations of these initial jury trials. You can be sure, however, that we will make responsible decisions based on all of the latest data and public health guidance, and that no jurors, lawyers or witnesses or members of our staff will be asked to report to our courthouses unless we are confident in our ability to protect their health and safety. And every trial that does take place will be conducted in a building that is operated with the full range of safety protocols that have been implemented, tested and refined to protect the hundreds of jurors, lawyers, witnesses and staff who have already safely participated in our jury trial pilot over the last several weeks.
As someone who makes his living in the courtroom well, I’m obviously happy to see jury trials restart. For it is only with a jury in the box that an insurance company will be forced to come to the table in good faith to negotiate.
But. And you knew there had to be a “but,” didn’t you?
What will these jurors look like who appear amid a pandemic? Will they be representative of the general population, so that litigants have a jury of their peers?
Unlikely.
The jury pool as a whole is most likely to be skewed.
We can start with those most vulnerable to COVID-19: The elderly. What percentage of our seniors/retirees, who ordinarily would show up for their civic duty, will say “no way, ain’t gonna do it.” Because virus. This demographic is almost certain to decrease.
How about those with underlying respiratory conditions? You can rest assured more of those will also stay home than would ordinarily show up. And many of these will have conditions exacerbated by poor health care.
Minority populations? Black populations have been especially hard hit, and it would be reasonable to assume that, as a percentage, fewer would want to come into the close confines of a courthouse no matter how much the judiciary says it will be safe. Because potential jurors won’t really know what the lay of the land will look like until they get there.
Mass transit users? Less likely to come to the courthouse while those that can afford private transportion are more likely.
And what of those that think the virus is no big deal? This population, generally conservative, will be more likely to come to the courthouse to serve.
So, in summary, the jury pool in New York City is now likely to decrease the number of seniors, those with respiratory issues, Blacks, and the poor, and conversely more likely to include those who are young, white and conservative.
I’d love to say that I have a solution for this problem. I don’t.
But I’m open to suggestions. And I bet the judiciary is also once they recognize the problem.
One day this pandemic will end. I don’t know when, but it will.
And when it does end what will the future hold for those lawyers who actually know where the courthouse is located and go there on a regular basis? I’m glad you asked.
First and foremost, the courts have partially adapted. Necessity is the mother of invention and all that.
Virtual depositions are going on, despite the fact that some defendants tried to argue that there were reasons everything should be put on hold. And many lawyers are finding out that little is lost in taking testimony this way. You want to be in the room with your client? OK, you can do that. But if opposing counsel or the stenographer doesn’t want to be there, then they can appear virtually. Win-win.
Virtual conferences are now taking place daily with courts. Lawyers know all too well the time spent traveling to/from court and the time waiting (and waiting, and waiting) on those hard wooden benches for your five minutes with the judge. Those are now a thing of the past. Hopefully they will stay that way.
Because most appearances (on personal injury matters) are for discovery issues, and most of it is usually handled in the hallway outside the courtroom anyway. Only a small fraction of important issues need judicial intervention, and most of that can be done virtually.
Many appearances are mere status conferences where, literally, nothing happens at all other than giving you a date to come back in the future. (Yes, dear non-lawyer readers, this stuff was still going on as of the pandemic’s start.) Does anyone really need to kill three hours going to court to be told “We think your trial will be in seven months”?
What does all this virtual appearing mean? It means that, if you want to make your best appearance, your office is now turning into a TV studio. You need to be well lit, well seen, well heard and have a decent professional backdrop.
While I wrote, back in March at the dawn of the pandemic, a list of tips for dealing with this while it was ongoing, I think now that virtual appearances are here to stay. They are successful. So to the extent virtual appearances have been jerry-rigged until now, lawyers should see this as being permanent. The future has arrived.
Think of it this way: You formally may have shelled out $500 – $1,000 for a good suit. So you would look professional in court. Why wouldn’t you also put on your best face virtually?
Incredibly, I’m told by judges, many aren’t doing it. They are oft times phoning it in dressed in casual clothes, or from remote areas with lousy wi-fi. It does not serve your client well to disrespect the court.
You have two offices, the first being the high-priced storage facility that is on your letterhead and the other being your home. One day you will get back to the real office, and may have already started. But the virtual appearances will (hopefully) continue for many of the routine things we do.
For me, I’m moving my office shortly (unrelated to the pandemic) and you can be sure that the nice bookcase I bought 30 years ago will be behind me and I’ll have lights in front of me.
Home offices are trickier, of course, due to the myriad differences from one to the other. But absolutely required — even if forced to appear from the kitchen table in a two-bedroom apartment you share with a spouse and kids — are a good connection, court clothes, good audio and decent lighting. Webcams and lights can be bought for under $100. There’s no excuse for appearing in court as a backlit shadow.
Since virtual appearances are likely to continue past the pandemic’s end, you might as well make those investments now.
Think of it as buying a suit. And spend accordingly.
Back on March 7th, Gov. Cuomo declared an emergency in New York due to then COVID-19 pandemic. And with that, issued a tsunami of Executive Orders.
One of those orders tolled the statute of limitations (Executive Order 202.8) effective to March 20th. That tolling was widespread for a number of different areas, inclusive of all civil cases, and included:
any specific time limit for the commencement, filing, or service o f any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws ofthe state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date ofthis executive order until April 19, 2020
Thereafter, every 30 days Cuomo extended the toll (or is it merely a suspension? See update) another 30 days.
The courts were closed. Lawyers and clients alike were sheltering in place, and to this day some lawyers still have not gone into their offices, which are now just very high-priced storage facilities.
For the non-lawyers that may be reading, a toll means an effective freeze. If there was 60 days left on the statute of limitations to sue on a car collision, you would still get that 60 days when the toll was lifted. If you slipped and fell on ice in a ;parking lot in the middle of July while the tolling was in place, the statute of limitations would not start to run until the toll was lifted.
But now the toll (if it is a toll, see the update) is being lifted for civil cases, as noted in the subject heading. It ends on November 3rd (Election Day) as per Executive Order 202.67, 228 days after it started.
So, a practitioners note, if a client has a matter that needed to be put into suit, and you were dilly-dallying because of the tolling, dilly-dally no longer.
And if you continue to dilly-dally, make sure your professional liability premiums are paid up, if you get my drift.
And as for the non-lawyers, the potential clients who want to make personal injury claims, yet waited and waited and waited until the statute of limitations was about to expire, don’t be surprised if lawyers won’t let you in the door. See #10 of 10 Signs The New Matter is a Dog (Before you even consider the merits).
Update: In the New York Law Journal, Justice Thomas Whelan (Supreme Court, Suffolk County) argues that the courts may not view this as a tolling of the statute of limitations, but as a suspension, thereby creating a trap for the unwary. There are, obviously, no cases on this yet as the Executive Orders won’t expire until November 3rd:
While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period.
The basis of the argument is that, while the original EO specifically said the statutes of limitations were “tolled,” the seven subsequent orders that extended it state that they “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, …”
Thus, “tolling” in the original and “suspension” in the follow-ups.
Each of the orders cites as its authority Executive Law §29-a, which permits the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency…” It does not use the word toll.
If it is a suspension, as Justice Whelan argues, then you don’t tack on to the end of the statutory period the number of days in the toll. You simply get a grace period until the end of the suspension if your time would otherwise expire, and that means a flood of filings between now and when it ends.
The essence of the issue is this: Did Gov. Cuomo exceed his authority under Exec Law 29-a by creating a toll, when only a suspension was authorized by the Legislature? And what of the litigants that relied on the Governor’s use of the word “tolling?”
The bottom line, in the words of the late Prof David Siegel, Grand Guru of all that is New York’s civil practice law and rules: You don’t want to be the test case. File your damn papers now.
