August 10th, 2020

No, Flying is Not Safe Yet (Seriously Delta? Seriously?)

I figured, after five months of pandemic, that the airlines would have their acts together. Delta, after all said they would keep the middle seats open.

So we picked Delta to fly our kid down to south Florida for his first year of college. Because we valued safety and security, and apparently Delta understood that.

Boy, were we wrong.

Leaving out of LaGuardia? No problem. Checking kid in to school? No problem.

At the school: Masks signs and social distancing signs everywhere? Yes. Masks required everywhere on campus, even outside? Very heavy-handed for outdoors, for sure, but some people are incapable of understanding nuance. So a one-size-fits-all solution.

At the local Bed, Bath & Beyond? Everyone masked. Target? Everyone masked.

Not bad for Florida, eh? So far so good!

But we had to come home. And fly through Miami International Airport.

Now there are only a couple real choke points at an airport: TSA and the actual plane.

As we approached the security checkpoint I saw a couple people with chin masks — the same types of people who believe that a condom on the balls is effective.

Well, I was sure TSA would take care of that, right? Let’s face it, the chance of dying from COVID significantly exceeds the chance of my plane being blown up.

And then I saw a TSA agent with the nose poking out. And remember, this agent is working with others who had the ability to correct the situation, or have supervisors correct the situation. But there was the schnozz.

And worse yet, there was no crowd control and people lined up tightly to put their stuff on the belt to be x-rayed and walk through the full-body scanners (hold your breath!).

Five months into a pandemic and TSA doesn’t get it.

On to Delta in the vast and mostly empty Miami terminal.

They controlled boarding very well. No clogging of the jetways. Well done by desk agents.

But on the plane? Fuhgetaboutit. Now sitting in the most perilous part of the trip — trapped inside a tin can for hours with people immediately in front and behind you and breathing the same air. Now was the time that masks came down below the nose, or off altogether. Now?!

Delta made announcements. And claimed they would enforce the mask rule. But they didn’t. So the maskless stayed maskless.

One might think I should complain to one of the flight attendants, but they knew. They were going up and down the aisles making sure seat backs were up and trays stowed away. They looked. At everyone. They saw. They elected to do nothing.

Now remember that the primary objective of flight attendants is not serving you a beer. It’s safety. Like helping to evacuate a plane in an emergency. Everything after safety is a bonus.

Delta: If your flight attendants are antsy about confronting mask-holes, why not hire some out-of-work bar bouncers or event security personnel? They are not afraid of confrontation. Many of them have long experience dealing with belligerent drunks and other, assorted malcontents and troublemakers.

And then throw a bunch of people off the planes. And publicize it. Brag about it: “Our airline is the safest because we will throw the mask-holes off the plane! And then ban them for a couple years!” Now that’s the airline I would feel comfortable flying. And, I think, so would most others.

And, as good as Delta was with boarding it was awful with leaving. People racing forward to jam the aisle as if this was the old days when being rude was just being rude and not an actual danger due to proximity inside that long can.

So. A word to those considering travel. Based on exactly one round-trip flight on Delta to Florida. No matter what the airline says, assume they don’t have the stones to enforce their own security rules.

Will taking care of actual enforcement cost airlines money while they are losing buckets of it due to the pandemic? Yup.

But you know what else? The longer this pandemic goes on the more money they will lose. Some will go the way of Pan Am, TWA and Eastern. They have a self-interest in slamming the pandemic down hard, no matter how craven and stupid some public officials are.

And certainly don’t trust TSA to take care of <checks notes> security.

August 4th, 2020

Cuomo Signs Bill Limiting Medical Immunity

Back in April, the New York legislature passed a budget that included widespread immunity for medical practitioners dealing with the COVID-19 pandemic. But in addition to granting some immunity for negligence for COVID patients, it also granted immunity as to other patients in the hospital or nursing home.

That immunity has now been abolished for all patients other than the COVID ones. Cuomo signed the update yesterday.

The original immunity, forged amid a frantic medical crises, assumed that the all-hands-on-deck position of many medical and nursing institutions would result in mistakes elsewhere. So if, for example, a patient non-COVID stroke patient inadvertently didn’t get her medication because the hospital were shorthanded due to overwhelming COVID cases, the Legislature decided to grant immunity.

Public Health Law 3081(1)(5), where that immunity sat, has now been modified to remove that immunity for the non-COVID patients.

The modifications are seen here with showing additions in caps and strikethroughs for the deletions. All of subsection c is now gone as part of the definition of health care services for the purpose of the immunity bill:

That immunity existed — as per the following section 2(1)(b) — if the healthcare practitioner was “impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.”

(The potential immunity for COVID patients remains intact.)

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.

It’s worth noting, because this will also be litigated, that the original immunity did not extend to gross negligence and certainly not to an intentional tort. So when suits are started now that allege malpractice during the immunity period, you can rest assured that gross negligence will be argued, in addition to claims that the medical care was not impacted by the COVID outbreak.

The changes are effective immediately.

The text of the bill is here:

Immunity-Removals-COVID Download

June 1st, 2020

New York Judge Orders Virtual Depositions Due to COVID-19 (Updated x3)

With New York’s courts shut down for almost everything but emergencies, litigation has mostly ground to a halt unless the parties agree to keep going. No trials and no conferences.

A great many lawyers, myself included, have steamed forward with virtual depositions. But what if one of the sides — the one that most benefits from delay — simply tells you to stuff it? They ain’t going forward.

Motion practice to force recalcitrant litigants forward has just started.

We have now, I believe, the first judicial opinion in the state on that — dealing specifically with objections to going forward due to COVID-19.

Last week, Justice Robert David Kalish, sitting in New York County, ordered the parties to proceed to depositions “by remote means” in a Labor Law matter. Count on this decision to be cited widely in the months to come.

Defendants had tried to stall the case, arguing that they were willing to go forward, but that “depositions should occur in the traditional, in-person format, after social distancing restrictions related to the current COVID-19 pandemic have been lifted.”

As the Court noted in rejecting the attempt to stall, “there is no prediction for when all of the pandemic restrictions will be lifted.”

There’s a risk to making flagrantly bad arguments, and that is a judge might call you out on it, and establish a precedent that you are not happy with. Such was the case here with counsel for defendant Time Warner Cable:

While no side claims that it lacks the ability to conduct these depositions by video — and, indeed, during a pre-motion Skype for Business conference, TWC’s counsel noted that he had recently conducted a six-hour deposition by remote means in another case — TWC’s counsel argues that the depositions of the Remote Witnesses should be taken in-person because he himself [and the witnesses] “do not feel comfortable participating in a deposition conducted by videoconference technology.”

Ouch. Bad argument amplified by the court.

Defense counsel also tried to stall other discovery as well, saying that no trial can take place anyway due to The Virus.

But Justice Kalish was clear that litigants must adapt to this “new normal” as there is no end in sight for the pandemic:

This Court disagrees with TWC’s counsel. To delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable. It goes without saying that business as usual is no longer the normal. The legal profession and its clients are currently coming to grips with the “new normal” brought about by the COVID-19 pandemic. Among other things, this “new normal” means that it is no longer safe and practical for depositions to be taken in person, as was the default during the “old normal.” TWC’s counsel suggests that this case should simply be put on hold until the “old normal” returns.

While the Court did not use the phrase “justice delayed is justice denied” it was certainly there in its essence for all to see:

However, as in any case, there is always a concern that a witness may become unavailable to testify for any number of reasons, including illness or death. During a pandemic, this concern is stronger. Moreover, it remains uncertain how soon the “old normal” will return— if it ever does.

Finally, the court kicks defense counsel a bit by saying, if you really want to sit in the room with your client, go for it. But that doesn’t mean others must take that risk:

Although TWC’s counsel feels that he will be prejudiced by not being able to physically sit next to the Remote Witnesses during their depositions, this order does not prohibit him from doing so. To the extent that the law and social distancing guidance allow, TWC’s counsel (or a co-counsel of his choosing) may be in the same room sitting next to these Remote Witnesses while Plaintiff’s counsel appears by remote means.

There is precedent for doing depositions remotely, but it’s always been on a case by case basis based upon “undue hardship.” So, for example, if an individual was injured in New York and returned home to a foreign country, but could not return for deposition for visa reasons, a court would call that an “undue hardship.” People are not immune from their own negligence, after all, simply because they were “lucky” enough to hurt a foreigner.

But this decision takes the pandemic and uses it broadly. This scene is playing out all over the state, thousands of times over. To the extent it is cited and relied upon by others (as I think it will) it affects every case that is trying to move forward.

It should be noted that not all defendants have conducted themselves this way. Many depositions have gone forward with the agreement of counsel.

But those that see to use the pandemic to gain a litigation advantage are now on notice: If the rest of the judiciary follows Justice Kalish, it won’t end well.

The case is Johnson v. Time Warner Cable.

Johnson-v.-Time-Warner Download

Update: Moments after publication a friend alerted me of a decision this morning on virtual depositions from Nassau county (Justice McCormack). In this real estate dispute (return of downpayment on a house) the matter of re-deposing the plaintiffs was briefed before the courts shut down. The judge ordered depositions to go forward and, obviously anticipating a coming issue with whether depositions should be done virtually, simply decided it before anyone could yelp:

The depositions shall take place via Skype, Zoom or other electronic means, unless all parties and counsel agree to face-to-face depositions with the appropriate social distancing. [emphasis in original]

The case is here: McDonald v. Pantony

Update #2: In Albany county, Justice Christopher P. Baker ordered on June 2, 2020 that the deposition of a doctor in a medical malpractice case must go forward remotely.

Interpreting the Executive Orders of Gov. Cuomo, which stated that a court may not compel “the personal attendance” of physicians from facilities that treat COVID-19, he wrote that this means they should be done remotely. In other words, the executive order was to halt the potential spread of the virus, not to delay lawsuits against doctors.

The doctor, of course, has every right to have his attorney physically present if the two so desire, but this does not mean that opposing counsel or the court reporter need to be in the same room.

The case is Melkonian v. Albany Medical Center.

Update #3 In Westchester County, Justice Joan Lefkowitz wrote a comprehensive decision that, as with the above cases, mandated that depositions be held virtually. Both Johnson and Macdonald, linked above, were cited in addition to others. .

The case is Chase-Morris v. Tubby.

April 15th, 2020

It Won’t Happen to Me

When I was a puppy lawyer I learned a truth that’s come up time and again when trying cases: Jurors, for the most part, don’t think that the bad incident would have happened to them.

It doesn’t matter if it’s a car crash or medical malpractice. Somehow, someway, people want to believe they are different. The victim must have somehow been vulnerable or at fault.

And then the same issue popped up with COVID-19.

Before going on to an interview with David Lat on this subject, I want to reinforce something: I’m no different. I’m scheduled to turn 60 next week — I may cancel due to the virus, and stay 59 for another year — and figured that the virus probably wouldn’t make me ill. Despite being in the original east coast containment zone.

Why? I’ve been a distance runner for almost 30 years and run a bunch of marathons and have, I think, a pretty good set of lungs. And healthy lungs are important, we’ve been told, in fighting off the virus.

It was with this mindset that I read this op-ed in the New York Times featuring an interview with Lat, who recently spent six days intubated due to COVID and emerged to tell his story in many forums.

But this particular telling of the story, on the op-ed pages of the New York Times (The One Kind Of Distancing We Can’t Afford) grabbed me differently than others. It was about the way folks wanted to psychologically distance themselves from Lat.

They wanted to be different from him. To prove to themselves that they were not at the same risk.

The op-ed writer, Jennifer Senior, reacted the same way I did — and many of you likely are, after finding two of her doctor/nurse friends saw a 50-year-old woman die from COVID:

I, too, am a 50-year-old woman. As I listened to their stories, I had to stifle the same unlovely impulse. “But did your patients have a pre-existing condition?” I wanted to ask. “Were they fighting cancer, were they smokers, were they already floridly unwell?”

Nobody, but nobody, wants to believe they are at risk. We are all smarter than average.

Ms. Senior sets up the background regarding Lat, writing:

For Exhibit A, look no further than the Twitter account of David Lat, the 44-year-old lawyer, legal recruiter and founding editor of Above The Law, an immensely popular blog. Lat was diagnosed with Covid-19 in mid-March, and he’s tweeted about it ever since, save for the chilling stretch during which he was on a ventilator. When he returned, he posted a thread exploring the reasons some people die from Covid-19 while others suffer not at all.

This part is well known by many, as he first appeared in New York’s legal press and has since made numerous national appearances.

But the reactions of others to him is what really jumped off the page at me, for it went directly to something I’d known for decades about jurors when trying cases, yet never appreciated in myself:

He was suddenly pelted with queries about his own health. People were subtly probing to see whether there was a hidden reason he’d fallen ill.

It appears that Lat’s own friends were acting the same way as many jurors, which is to say, they were acting as humans subconsciously worried about self-preservation. They were looking for the reason that they would not have the same bad luck that Lat had. They were different. They had to be.

Lat went to say:

“Maybe I’m reading too much into things,” he replied, “but I received a number of responses that seemed to latch on excitedly to the mention of my exercise-induced asthma.”

And yet, he was exceptionally active, likely far, far more so than the average person. By orders of magnitude:

That he ran two New York City Marathons with this asthma in his 30s — and did high-intensity interval training three times a week until he fell ill — didn’t move a number of his followers. (The bluntest response: “Asthma is still asthma, waiting to knock you out, and any severe respiratory illness reveals the fundamental weakness of your lungs.”) Nor did the fact that Lat was healthy in every respect: normal blood pressure, normal weight, didn’t smoke, barely drank.

We all want to be different than that other poor fellow who was hit by the car or the victim of malpractice. We want it badly. But we aren’t.

There probably isn’t much we can do about that, as I think this is fundamental to human nature, and something I learned about others many years back.

But the least we can do is recognize it in ourselves.

April 1st, 2020

April Fool’s Day is Hereby Adjourned

It’s with a heavy heart that I feel compelled to indefinitely adjourn April Fool’s Day.

I do so by the power vested in me as April Fool of the Legal Blawgosphere (hereinafter, “April Fool of the Legal Blawgosphere”).

It’s a painful choice, for sure, but that stupid virus (hereinafter “stupid virus”) left me no choice. Let’s face it, if I should become infected and ill — and I most likely will be infected if I’ve not been already — any joke could come back to haunt me. Haha, look what that moron wrote before he went down.

And this would be a really shitty thing to have on one’s stone: “Father, son, husband, brother and fool.” And not the jester kind of Fool. We’re talking fool with a little f.

This would, naturally, be followed by a social media uproar over use of “moron” and “fool” and accusations of ableism and then where the hell would I be? Still under the stone.

Regular readers know I have a bit of affection for this auspicious day, and I exercise my awesome power as April Fool of the Legal Blawgosphere (hereinafter, “April Fool of the Legal Blawgosphere”) to adjourn only with extreme reluctance. The mantle of responsibility weighs heavy while wearing the jester’s hat. Irregular readers should eat more fiber.

And yes, I know I repeated that hereinafter, “April Fool of the Legal Blawgosphere” joke twice but this is a short piece, and there’s a virus ravaging our communities, so suck it up. If I cared more about the moniker I would have come up with a catchy acronym. But I don’t. So I didn’t.

I think I digressed.

This April Fool’s saga started 12 years ago when, as a newbie law blogger, I spun the tale of three justices of the Supreme Court recusing themselves in a fantasy baseball appeal because they participated in the court’s own fantasy league. They had, after all, a vested interest in the outcome. Two other participating justices, however, refused to recuse. That would be Scalia and Ginsburg, two-thirds of their team “The Three Sopranos” since you insisted on wondering. My point was to demonstrate the lack of firm rules for High Court judicial recusal.

That little blog post got a whole bunch attention, really, because a young, smart, visionary and delightfully mischievous blogger guy named David Lat (now recovering from said stupid virus) ran the piece in Above the Law’s Morning Docket.

I confess to having had great fun both in writing it and deconstructing it, because there was an actual point to the joke. And I remain grateful to Lat for acting as my amplifier as he blasted it to the world.

My April 1 gig as Official White House Law Blogger in 2010 got the most attention when the New York Times got punked. Once again, it was only because of the willingness of other law bloggers who were in on the joke to play along. (Greenfield, Popehat, Orin Kerr @ Volokh, among others).

The New York Times issued its mea culpa a week later via the Pubic Editor.

There have been other April Fool’ Day bits, which you can read here, each with a point to make (or at least an attempt at one) but once you become know for April 1 gags it becomes almost impossible to pull off. And today was not the time to see if I could once again squeeze past that almost.

I thought about doing something with the millions of coronavirus beards being grown around the world by men realizing that, well, shaving isn’t a priority. Or something with Netflix and chilling, chilling and more chilling.

But no. I couldn’t. That stupid virus decided to make my town the first East Coast cluster, and I was dead smack in the middle. Everyone in these parts now knows someone who was sick or is sick. And if you don’t you will. Regardless of which parts you live in.

We stand adjourned. April Fool’s Day will continue on a future date. Without notice, of course.