Witnesses and Others Must Be Vaccinated; Unvaccinated Witnesses May Testify Via Video

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An interesting statement from a decision yesterday (Benaron v. Simic [D. Ore.]) by  Magistrate Judge Stacie Beckerman:

The Court intends to require that everyone who appears in the courtroom for trial (including parties, witnesses, counsel, and jurors) are fully vaccinated against COVID-19 at the time of trial (and will allow any unvaccinated witnesses to testify via video) ….

And from Novello v. Progressive Express Ins. Co. (M.D. Fla.), decided April 23 by Judge Kathryn Kimball Mizelle:

Defendant Progressive Express Insurance Company filed two motions requesting that the Court allow two of their witnesses, Joyce Richardson and Cheryl Porter, to testify virtually or, in the alternative, allow video depositions to be used in lieu of live testimony at trial. Plaintiff Frank Novello does not object to the motions. Because the Court finds that good cause exists and that appropriate safeguards will be used, the Court grants Progressive's motions and will permit Ms. Richardson and Ms. Porter to testify by video.

In its motion, Progressive explains that Ms. Richardson is "extremely concerned about appearing at a live, in-person trial … due to serious health and safety concerns arising from the ongoing Covid-19 pandemic." In particular, Ms. Richardson is concerned because she has an immune disorder, she is not fully vaccinated, and she is a caregiver for her elderly mother. Regarding Ms. Porter, Progressive explains that her "age and diabetes places her as being at high risk for serious complications if exposed to Covid-19" and that "she will not be fully vaccinated in time for trial." "Ms. Porter is also extremely concerned about risking potential exposure to her elderly parents, with whom she interacts" and who suffer from underlying health conditions that make them especially vulnerable to COVID-19.

Although Federal Rule of Civil Procedure 43(a) prefers that witness testimony be taken in open court, "[t]he plain language of the rule [also] gives the district court discretion to allow live testimony by video for 'good cause in compelling circumstances and with appropriate safeguards.'"

The Court finds that good cause for allowing virtual testimony exists in the light of the ongoing COVID-19 pandemic and the witnesses' circumstances, including their failure to be timely vaccinated and their underlying health conditions. Indeed, Chief Judge Corrigan's Administrative Order Extending the Cares Act—which was entered on February 24, 2021, and is still effective—recognizes that the President's national emergency declaration with respect to COVID-19 remains in effect. In re: National Emergency Declaration, 8:20-mc-25, Doc. 5 (M.D. Fla. Feb. 24, 2021). Further, the Court cannot predict when the pandemic will end or when Ms. Richardson's and Ms. Porter's concerns will be alleviated such that they would be able to testify in person. This inherent uncertainty counsels against indeterminately delaying trial, especially considering the age of this case. See Toland, 2021 WL 1201737, at *4 (explaining that the district court's decision to hold a hearing by videoconference because of the COVID-19 pandemic was within its discretion under Rule 43).

Additionally, appropriate safeguards will be utilized for the witnesses' testimony. Both Ms. Richardson and Ms. Porter will testify by video, which allows the jury to observe and evaluate the witnesses' demeanors and facial expressions during their testimony. And both Plaintiff and Defendant will have the opportunity to examine Ms. Richardson and Ms. Porter using the same video platform, ensuring that the method and opportunity for examination is the same. Finally, Progressive has provided sufficient advance notice of its request for these witnesses to appear virtually by filing its motions weeks before trial. Mr. Novello does not oppose Progressive's request, foreclosing any argument that Mr. Novello lacked an opportunity to argue for the witnesses' in-person attendances. See Fed. R. Civ. P. 43(a) Advisory Committee's Note to 1996 Amendment (advising that safeguards must be adopted to ensure the "accurate identification of the witness" and "accurate transmission" of witness testimony, and to ensure that "advance notice is given to all parties" so that "the opportunity to argue for attendance of the witness at trial" is protected).

Accordingly, considering the totality of the circumstances and the Court's own discretion, the Court GRANTS Progressive's unopposed motions for alternative appearances by its witnesses. Joyce Richardson and Cheryl Porter shall be allowed to testify at trial virtually, through Zoom or some other comparable platform as the Court later directs.

NEXT: Draft of Proposed Amicus Brief in Anti-Libel Injunction / Society for Creative Anachronism Case

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  1. Video-linked depositions have become the norm in many places. Wonder how long it will take for them to become the norm for trials.

    Under the federal rules, you can only make a witness in a civil case travel 100 miles to the courthouse. That means if the witness if far away, you have to take the deposition and use that in court. I always wondered why they could not force the witness to appear near his or her home at a video hook up. Maybe that will become more popular.

    1. This is about live testimony in court, not depositions.

      1. Yes, I got that. If you actually read my comment.

  2. “…she has an immune disorder, she is not fully vaccinated, and she is a caregiver for her elderly mother.”

    Given the unique circumstances here, I think the judge made a good compromise.

    1. I agree, but I still wonder if this really satisfies the confrontation clause. I suppose if the video link was two way…

      1. It’s stupid as hell. Unconsciously, you’re letting this covid nonsense be the new normal.

        1. Hey, I have a niece who’s had a bone marrow transplant after cancer treatment, and has to live her life on immune suppressing drugs. The need for a minority of people to go to extremes to avoid exposure to pathogens is real. So I’ve got no problem with this where somebody has a real medical issue.

          Requiring witnesses to be vaccinated is, I agree, silly.

          1. A court has no business asking people what their vaccination status is.

            Someone asking courts to schedule around cancer treatments is as normal as death and taxes, nor would it be unheard of to as the judge to clear the courtroom for someone who is in a condition like your niece.

      2. This is a civil case, there is not Confrontation Clause issue.

        And of course it is two-way. The witness is examined and cross-examined same as appearing live in court.

        1. The confrontation clause requires the witness to see the defendant, not the defendant’s counsel. Basically, it’s supposed to force you to accuse somebody to their face.

          1. My understanding is that it’s about being able to cross examine the witness, not necessarily face to face meat space confrontation.

      3. Confrontation Clause only applies in criminal cases – 6th Amendment

  3. Emigrate while you still can. Vote with your feet.

    1. To where, exactly? Australia?

      1. Mercifully for the Australians, their Supreme Court just ruled today (the 30th, + or – the international date line) that the “vax or get fired” mandates are illegal.

        The trade types protesting every day may have helped. Not many white riots these days.

        1. Mercifully for the Australians, their Supreme Court just ruled today (the 30th, + or – the international date line) that the “vax or get fired” mandates are illegal.

          Do you just like making stuff up about foreign countries and hope nobody checks? Like your “Japan has given up on vaccination and prescribed horse dewormer to everyone” from the other day, your claim about Australia is wrong.

          1. Australian Member of Parliament, Tanya Davis, is reading from a ruling that was just handed down from Fair Work Commission’s decision that declares mandatory jabs as a condition of employment to be against the law. The ruling states that politicians pushing for mandatory “vaccinations” are not doing so to protect public health. 

              1. 1) I am not an expert on Australian law, but the “Fair Work Commission,” whatever that is (presumably something vaguely like the EEOC), is not the Australian Supreme Court.

                2) I am not an expert on Australian law, but I can read, and there is no such “declaration” in that link. That is a procedural decision denying the worker permission to appeal a ruling against her:

                “We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.”

          2. Do you think that everything turns on a dime? Does your world revolve around politfact?

            As for Japan they are slowing vaccines (it already had the lowest vax rate of the developed world, especially after recalling millions of tainted doses) and instead doctors are pushing other treatments. Here is a sample headline: “Now is the time to use ivermectin,” said Haruo Ozaki, chairman of the Tokyo Metropolitan Medical Association.

            India shut down the “delta variant” this way. You can call it a horse dewormer as a foolish joke, but ivermectin has long been used there for their elderly population.

            1. Do you think that if you say one thing, you then cite something entirely different and that’s good enough? An individual Japanese doctor — a prominent one, to be sure, but still a private individual — mentioned ivermectin. Fine, but your claim was that Japan had “dropped all vaccines and is, ahem, giving prescriptions for ivermectine for everyone with covid.” This is false in every respect. Japan has not “dropped” vaccines. There was a recall on a batch of one particular vaccine (Moderna) because of possible contamination in the manufacturing process, but it continues to be approved and used. And they are not prescribing ivermectin; as in every other advanced country, ivermectin is not approved as a treatment for covid in Japan.

              You can call it a horse dewormer as a foolish joke, but ivermectin has long been used there for their elderly population.

              Sure: for killing parasites. Not for treating viral infections.

              And India, of course, has not shut down anything. Nor is ivermectin recommended for use there. https://www.indiatoday.in/coronavirus-outbreak/story/why-hcq-ivermectin-dropped-india-covid-treatment-protocol-1857306-2021-09-26

  4. This is extremely disturbing, especially if there actually will be other live witnesses, marking a significant disparity between the two. Will this unfairly prejudice the jury against any remote witnesses? Will it just put them at a disadvantage compared to live witnesses?

  5. An unintended consequence here is that it gives potential jurors another route out of jury service.

    1. My first thought. It’s an easy way to get out of jury duty.

  6. Thank you for sharing this. The Fully Informed Jury Association is tracking the issuing of requiring jurors be vaccinated:
    https://fija.org/covid-19/juror-discrimination-covid-vaccination.html

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