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Archive for the ‘Coronavirus – Tort and Catastrophic Loss’ Category

Ready Camera One: Remote Litigation in the Era of Social Distancing

Posted on: April 7th, 2020

By: Jennifer Adair, Jennifer Markowski and Andy Treese

Evaluating claims to move them towards resolution or trial is the lifeblood of a defense practice. This typically requires direct interaction with a plaintiff and key witnesses, either at deposition (to hear their testimony, to form impressions of how they will be received by a jury), at mediation (to assure the plaintiff personally understands the strengths and weaknesses of the case), or at trial.  In person interaction is simply not as practical as it used to be and, in some places, it might be illegal.  It is not surprising that we have been fielding inquiries from claims professionals and their insureds about whether we can continue to move their cases forward by conducting discovery and settling claims in an age of social distancing. 

The answer is yes.  At Freeman Mathis & Gary our attorneys routinely take depositions remotely and have had great success with remote mediation.  Both, however, carry their own practical considerations.

  • Depositions.  Remote depositions have been around for well over a decade, but the increased demand is changing the marketplace.  Many lawyers who have never used or have avoided remote deposition technology no longer have a practical choice.  Some are adapting more quickly than others:  we have seen some opposing counsel take clean, effective depositions by video, but we have also seen opposing counsel take depositions that were not effective due to lack of familiarity with the technology and/or a misunderstanding of the different methodologies necessary to prepare for a remote deposition.  Counsel should consider several factors when preparing for and conducting an online deposition: 
    • Is this a deposition you are willing to take remotely?  Minor witnesses, some experts, or witnesses in cases with low exposure can probably be deposed remotely without concern.  Depending on the facts and exposure associated with the case, there may be some witnesses you may simply want to depose in person, even if it delays the case for 45-60 days. 
    • Prepare for your deposition at least two days early.  Identify the exhibits you are certain to use at the deposition and assure they can be presented cleanly to the witness.   For those that are obvious (complaint, incident report, interrogatory responses, etc.) consider having them pre-marked and distributed by email to opposing counsel, the witness and court reporter to speed the deposition along.  Also, identify documents you may want to use (medical records, photographs, etc.) and have those available and ready to present during the deposition. These can be circulated by email and shown to the participants using the screen sharing function of most videoconferencing technology.
    • Understand the technology. What program will be used? How will exhibits be presented?  Have you tested the video conferencing software or any other technology you need to use during the deposition?  How does the audio system work (i.e. can more than one person speak at a time or would an objection by counsel also inadvertently mute the witness’ microphone)?
    • Consider the logistics of the oath.  Who will place the witness under oath and where will they be?  Does your state permit oaths to be administered remotely?  Consider making a formal stipulation on the record that, due to the pandemic, the parties agree to the sufficiency of an oath administered remotely.
    • Decide how objections will be handled.  If it suits your purpose strategically, you and opposing counsel may choose to reserve some objections that would typically be made on the record.
    • Understand the cost and the final product.  How much is the vendor charging for this deposition as opposed to a standard deposition?  Are they generating a traditional transcript or is the deposition also being recorded?
    • Make a plan for confidentiality. If the witness is your client, plan in advance how you will communicate (by email, texting, etc.) during the course of the deposition to avoid inadvertent disclosures. Make sure you know how to turn off your camera and microphone or, better yet, go into another room to converse with your client.
    • Expect the deposition to take longer than usual. Don’t allow logistical limitations to curtail zealous representation.
  • Mediations.  Mediation and other forms of ADR are effective because a knowledgeable, competent mediator can provide litigants and their counsel on both sides a “reality check” as to the strengths and weaknesses of their cases.  The process works better when the mediator can speak directly to the parties and for that reason, our instinct in the past has been to require personal attendance at mediation.  So far, however, we have found remote mediation to make sense for several reasons:
    • Remote mediation is generally effective.   Some cases simply don’t settle until a mediator twists a metaphorical arm or two.   Is that effective when the literal arms aren’t in the same room as the mediator?   So far, anyway, the answer seems to be yes – when the technology works.  Where that is the case, mediators can still engage in private caucuses and have the ability to review or share exhibits, documents, etc. as needed.   We can envision specific cases where a video mediation might not be appropriate but so far, remote mediation has been getting cases resolved.
    • Remote mediations keep cases moving.  Governmental orders aside, many of our adjusters and risk managers have been restricted by their employers from non-essential travel for the foreseeable future.  Remote mediation presents a cost-effective opportunity to resolve cases now.
    • Remote mediation is cost effective (for now).  Most of our vendors are currently providing remote mediation services at no extra charge.  Remember, mediation centers are a business, too, and have a vested interest in keeping their dockets full by providing the technology and know-how to make mediation convenient to the parties, via Zoom or similar systems. 
    • Litigants may have a greater motivation to settle their claims when faced with the reality that jury trials for civil cases seem unlikely to take place for at least several months after state and local judicial emergencies resolve.
    • Attorneys want to keep cases moving, too. Counsel may view remote mediation as a step that can be taken towards trial.  Most courts already require ADR / mediation before trial.  Others are likely to being imposing that requirement to control their post-coronavirus dockets. 
    • Understand privacy issues related to the technology. Media reports suggest that Zoom and potentially other platforms are at risk for security issues.  Make sure the mediator provides a password for participants to gain access, and that meetings are locked so that nobody can join without the moderator’s permission. Ensure that the mediator has disabled the recording function, and that chat is not archived. Ask your mediator to send instructions in advance so that you are comfortable with the measures being taken, and can request any additional protections you deem appropriate.

At Freeman Mathis & Gary, our team will continue to monitor and report on the use of emerging technologies to litigate claims and obtain favorable outcomes for our clients.

Additional information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

COVID-19: Protecting Those Who Protect Us

Posted on: April 2nd, 2020

By: Parisa Saleki

The Volunteer Protection Act of 1997 (Public Law 105–19) came into effect over two decades ago with a simple goal: promote volunteerism by limiting, and sometimes eliminating, a volunteer’s risk of tort liability. The recently enacted Coronavirus Aid, Relief, and Economic Security Act (CARES Act) further builds on the goal of encouraging volunteerism.

Specifically, the CARES Act limits liability of health care professional volunteers during the COVID-19 emergency response with respect to the diagnosis, prevention, or treatment of COVID-19 or the assessment or care of a person’s health-related to COVID-19. Section 4216 of the CARES Act states that a volunteer health care professional “shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency.”

The CARES Act does not, however, eliminate liability altogether. Volunteers should be cautious of several exceptions to the new rule. For example, the limitation will not apply if a person sustained harm as a result of a volunteer’s willful act or gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the harmed individual. Further, liability will not be limited if a health care professional volunteer rendered services and caused a person harm while under the influence of alcohol or an intoxicating drug.

So, who exactly do these new rules apply to? The CARES Act defines the term “volunteer” as a health care professional who, with respect to the health care services rendered, does not receive compensation or any other thing of value in lieu of compensation, which includes a payment under any insurance policy or health plan, or under any Federal or State health benefits program.

For legal professionals handling claims under this section of the CARES Act, it is important to note that the section is not retroactive. The limitation of liability only applies to claims for harm in which the act or omission that caused harm occurred on or after the date the CARES Act was enacted. Lastly, the effect of this section comes to a halt once the COVID-19 public health emergency is declared over.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Federal Government Issues New CMS Guidance To Protect Nursing Home Residents From COVID-19

Posted on: March 30th, 2020

By: Kevin G. Kenneally, Michael P. Giunta and William E. Gildea

Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus.  The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.

The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19.  CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations.  This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak.  In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice. 

The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately.  The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities.  Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities.  If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately. 

Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents.  If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice.

The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection.  The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents.  If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.

State governments closely regulate nursing homes, and many are issuing state specific guidance.  If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements.  The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.”  However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”

The memorandum provides the following email address for a point of contact: [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

State and Federal Motor Vehicle Exemptions related to COVID-19

Posted on: March 18th, 2020

By: Josh Ferguson

The Federal Motor Carrier Safety Administration (FMCSA) issued a national emergency declaration and in doing so provided a limited exemption from driver safety regulatory requirements.  The exemption applies “for motor carriers and drivers engaged in the transport of essential supplies, equipment and persons” that provide “direct assistance in support of relief efforts related to the COVID-19 outbreaks.”  The Emergency Declaration was effective March 13, 2020 and remain in effect until the end of the emergency or until 11:59 p.m. (ET) on April 12, 2020, whichever comes sooner.

The declaration defines “Direct assistance” as transportation and other relief services provided by a motor carrier or its driver(s) incident to the immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.  These include transportation of the following:

  • Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
  • Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19, such as masks, gloves, hand sanitizer, soap and disinfectants;
  • Food for emergency restocking of stores;
  • Equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
  • Persons designated by federal, state or local authorities for medical, isolation, or quarantine purposes; and
  • Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.  Another important aspect is the exemption terminates when a driver or commercial motor vehicle is used to transport cargo or provide services not identified on the list.

Many states have issued public emergencies, and ultimately those emergency powers may include other exemptions for operators of commercial vehicles.  For example, in Georgia, in declaring a public health emergency Governor Kemp stated that the declaration would immediately be used to help some nurses from other states get temporary licenses to practice in Georgia and lift restrictions on commercial truck drivers to let them continue stocking stores with supplies.  Just how these emergency declarations and exemptions factor into tort and employment-related claims will be seen months and years down the road.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].