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May 27, 2020
The COVID-19 virus has put an enormous strain on the Connecticut court system. It has never confronted such a significant challenge. The Court is now faced with major issues in commencing jury trials for all cases, including medical malpractice cases.
Safety presents significant concerns. For instance, how will jurors be able to be safe in a jury assembly room containing more than 50 jurors and how will they be able to be seated the appropriate distance from each other and counsel in the jury box throughout a jury trial? When jury cases do commence, it can be anticipated that jurors, especially those over 60 years of age, will be reluctant to serve in light of the risk of COVID-19. Further, the Court will require extra staffing to ensure safety of the jurors, judges, staff personnel and attorneys.
At present, the Superior Court is scheduled to commence civil jury trials in February 2021. I believe this date is somewhat optimistic based on the practical safety considerations. Additionally, since traditionally criminal trials have precedent, it can be expected that medical malpractice cases will experience further delays once trials recommence. In my view, it could well be 12 to 18 months until medical malpractice trials commence.
Even though the Governor has issued a proclamation that the statute of limitations will be extended, I believe it is wise to proceed with instituting cases within the actual statute of limitations so that when the Courts do open, these cases will already be on the trial list and thus have priority over cases being newly filed. I have filed a number of cases in the past weeks so that they will be processed earlier.
The Superior Court is now making provisions to utilize remote technology to hear motions and also to assist the Court in conducting mediations remotely. Medical malpractice mediations performed outside the court system have had very positive results. The present remote system of mediation allows the mediator to speak separately and privately with each counsel on-line. A significant issue will be whether the insurance companies representing the hospitals and individual defendants will be cooperative in attempting to resolve cases during this interim period without the pressure of trial.
Preparing cases to ready them for mediation and/or trial in this era of COVID-19 presents challenges as well. While remote depositions by the parties outside the Court system are not as effective as in-person depositions, they may become the new norm. Presently, there is capability to conduct depositions with counsel and witnesses being separated. However, successful management of these depositions requires the cooperation of plaintiff counsel and defense counsel. It serves neither party an advantage to attempt to do the deposition of only the opposite party.
A positive aspect of the virus that is actually helpful as the case is prepared is that physicians who are expert witnesses now, for the most part, have greater availability in their schedules and have experience utilizing remote technology such as FaceTime or Zoom. Using this technology to communicate allows the sharing of hospital records and films during on-line conferences with the physician. Technology will also now allow “live” expert testimony remotely during a trial.
Jury trials are the backbone of our legal system, and it is extremely important that the Court is available for litigants to resolve issues that require to be litigated. Prior to the virus, a significant number of medical malpractice cases had been resolved by settlement. However, resolution of these cases at present depends on the cooperation of counsel and on a court system that is available to try cases that do not resolve by mediation.
*There will be no discussion of the Governor’s Directive in reference to COVID-19 because of the multiple and uncertain issues involved.
Richard A. Silver
Silver Golub & Teitell LLP