The COVID-19 pandemic has affected everyone in many ways over the past year. In the hopes of returning to some sense of normalcy, Philadelphia’s court system has implemented a number of changes to its operations to create a safe environment where the public can once again conduct business. Below, I discuss how this has impacted asbestos and talc litigation pending in Philadelphia.
The first big change in Philadelphia’s asbestos and talc litigation matters has been with regard to mediation, which has evolved into a fully virtual mediation program overseen by Justice Russell M. Nigro. Prior to the pandemic, mediations were held exclusively in-person, and the litigants themselves were not required to attend. Justice Nigro scheduled mediations after he determined discovery had been completed, and motions for summary judgement were filed.If mediation did not conclude with the settlement of a case, parties were faced with immediate assignment to trial, often within just a few days of the failed mediation.
Following the advent of the pandemic, the structure of conducting mediations began to change. Initially, Justice Nigro conducted mediations over the telephone only. Justice Nigro would call each party individually and relay information back and forth as needed by separate telephone calls to each party. Many cases remained unresolved. As attorneys generally became more comfortable with video conferencing during the pandemic as an effective and necessary way to stay connected, so did the courts in Philadelphia, and Justice Nigro began transitioning from mediations via telephone to virtual mediations conducted via video conference.
Currently, Justice Nigro conducts multiple discussions during mediation in separate virtual rooms with each party individually, and attendance and participation of a client or client representative (or insurance carrier representative) is now required at all mediations, replacing the threat of imminent trial. Many mediations, however, are now scheduled and conducted before discovery is completed, and often before motions for summary judgment have been filed. Mediations that do not result in a settlement are given a subsequent deadline with which to file motions for summary judgment, changing the overall dynamic of the mediation process as there is no longer the immediate threat of trial to pressure the parties to settle.
With numerous cases backlogged from a lack of settlement, on March 4, 2021, civil jury trials resumed in a limited capacity in Philadelphia. Unlike other neighboring cities and states that have resumed jury trials either virtually through remote video conferences, or through a hybrid format (with jurors reporting via remote video but the judge, attorneys, parties and some witnesses appearing in the courtroom together), Philadelphia has resumed jury trials entirely in-person.
With regard to mass tort trials, the Court has indicated that there will be only two mass tort jury trials scheduled in 2021: a Risperdal case in September and an asbestos action in October. With a tremendous amount of jury trials looming due to the backlog created by the court closure of the past year, and fewer cases settling through mediation, jury trials will be proceeding under very unique circumstances.
Imagining the courtroom from the judge’s bench, prior to the pandemic the jury was once seated to the side of the courtroom in the jury box.Following the implementation of COVID-related safety changes throughout the courtroom, Philadelphia jurors are now seated in the far back of the courtroom where, customarily, the gallery was previously seated.Large plexiglass screens and dividers have now been installed throughout the courtroom and surround the trials attorneys’ desks in the courtroom, the witness stands, the stenographer’s desk, and anywhere were someone is seated by the judge.Additionally, trial attorneys may not directly approach the jury any longer, and may only address them during opening and closing arguments from a socially-distanced podium, leaving fewer opportunities for counsel to engage the jury throughout trial.
The juror’s seating, in what formerly was the gallery of the courtrooms, have been set up six feet apart in all directions, instead of side-by-side in the jury box as was the custom prior to the pandemic. Everyone in the courtroom will be required to wear a face covering over their mouths and noses the entire time they are present in the courtroom. Because of this new setup, projection screens, monitors, visual aides, and potentially even tablets or laptops will likely become the new standard in these courtrooms to not only tell the jury, but show them, what attorneys are talking about.
The number of in-person civil jury trials in Philadelphia as of March 2021 consists of 4 juries chosen each week (2 on Thursdays and 2 on Fridays), and as of March 17, 2021, 7 jury trials were picked.Two trials settled right after jury selection, 4 resulted in defense verdicts (with a plaintiff verdict on liability but no serious bodily injury) and 1 plaintiff verdict.There are 38 jury trials scheduled for April 2021, and the Court expects all of those cases to be disposed of by the end of the month through verdict or settlement. Currently, the Court is not yet scheduling asbestos, talc, or mass tort trials in the very near future, but due to the backlog of mass tort litigation, parties should be ready for back-to-back trials once those matters fully resume. Attorneys poised to try these cases in the more modern courtrooms with pandemic restrictions should be sure to prepare themselves for anything and everything!