Morgan v. Wesley Medical Center, LLC et al

Filing 610

ORDER FOR REMOTE CIVIL JURY TRIAL: The Court orders that the jury trial scheduled to commence on February 16, 2021 at 9:00 a.m., be conducted using the following procedures and protocols (see order). The Final Pretrial Conference will still take plac e by Zoom at 10:30 a.m. on February 12, 2021. The dry run of trial proceedings will now take place at 1:30 p.m. on February 10, 2021. SEE ORDER FOR FURTHER DETAILS AND DEADLINE INFORMATION. Signed by District Judge Kathryn H. Vratil on 2/4/2021. (kas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor by and through his next friend
and natural guardian, KELLI MORGAN,
Plaintiff,
v.
WESLEY MEDICAL CENTER, LLC d/b/a
WESLEY MEDICAL
CENTER-WOODLAWN, et al.,
Defendants.

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CIVIL ACTION
No. 18-2158-KHV

ORDER FOR REMOTE CIVIL JURY TRIAL
The Court orders that the jury trial scheduled to commence on February 16, 2021 at 9:00
a.m., be conducted using the following procedures and protocols. The Final Pretrial Conference
will still take place by Zoom at 10:30 a.m. on February 12, 2021. The dry run of trial proceedings
will now take place at 1:30 p.m. on February 10, 2021. All parties (counsel, plaintiff, defendants)
are to participate from the locations in which they will be stationed during the trial. In addition,
each party is to provide six additional mock jurors and a mock witness. We will begin with calling
the case and entry of appearances then run through jury selection and evidence presentation.
Parties shall have test exhibits in the same format that they plan to use during trial ready to pull up
and be shared over the Zoom platform.
A.

Remote / Virtual Trial Format
1. The entire trial, including jury deliberations, will take place using the
ZoomGov.com platform. No parties, counsel, witnesses, jurors or court staff will
be physically present in the courthouse. The Court will initially call a jury pool of
40 jurors and question them in panels of ten potential jurors. For each panel of

jurors, each attorney will have one round of ten minutes to examine the panel. After
questioning by the Court and counsel, the parties shall lodge any challenges for
cause. If such a challenge is sustained, the new potential juror will be added to the
next panel and the qualified jurors will be temporarily returned to a virtual waiting
room.
2. The public will have audio to trial proceedings by calling [phone], Access
Code: 1654737. Video access, except to participants, is not allowed.
3. The Court expects that witnesses and counsel addressing the Court will use a
computer with an adequate camera and an external hardwired microphone with its
own mute button, preferably a gooseneck microphone. If witnesses and counsel
addressing the Court decide to use headphones, they shall use a hardwired headset
or wired earbuds. The Court also strongly recommends, but does not require, using
a second monitor.
4. At all times when addressing the Court, counsel shall stand and shall be the only
person visible in the Zoom frame.
5. Witnesses for all parties and counsel shall use the same uniform virtual background,
which the Court will select. Witnesses shall stand when taking the oath. After jury
selection, the Court will also assign uniform backgrounds to all jurors.
6. Hours of jury trial will be 9:00 a.m. through 3:30 p.m., and the Court expects
counsel to make maximum use of the jury’s time during the trial day. From 3:30
to 4:00 p.m. each day, the Court will confer with counsel about witnesses planned
for the next trial day and take up objections to testimony or exhibits that the parties
plan to offer. The Court expects that the parties will take maximum use of this
opportunity to avoid objections and sidebars when the jury is present. The Court
will recess for lunch from noon to 1:00 p.m. each day, and take one 15-minute
recess at 10:00 a.m.
7. Counsel and parties must be logged into Zoom and standing by in the waiting room
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30 minutes before trial is set to begin on each day of trial. The Special Master will
promptly launch the trial session at the appointed time, and tardiness will be
extremely conspicuous.
8. Given the reduced number of parties and the shorter length of trial, bifurcation is
likely to result in substantially less benefit than the Court previously anticipated.
Therefore the bifurcation order is vacated.
9. Counsel shall each have 25 minutes for opening statements. Opening statements
will occur immediately after the jury is selected and receives preliminary
instructions, if time permits. Counsel should not expect an overnight recess in order
to put finishing touches on their opening statements.
10. Each side shall have three peremptory challenges.
11. As the evidentiary phase of the trial is wrapping up, probably before it ends, the
Court will conduct a jury instruction conference. Instructions will be finalized in
advance so that whenever the evidence concludes, the Court may move directly to
instructing the jury. After the jury is instructed, counsel will immediately do
closing arguments. Counsel should not expect to have an overnight recess to put
finishing touches on their closing arguments.
12. The Court expects the parties to meet and confer with regard to objections to
deposition testimony, and to exert every effort to resolve such objections prior to
trial.
13. All stipulated trial exhibits which have been identified prior to trial and submitted
to the Courtroom Deputy are deemed to be automatically admitted when mentioned
by any witness during trial.
14. Before 5:00 p.m. on each Friday, counsel shall notify opposing counsel of the order
in which they plan to call witnesses for the following week, along with the exhibits
that each witness will discuss. As noted below, hard copies of such exhibits shall
be presented to the witness before his or her testimony begins.
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15. No demonstrative exhibits (charts, power point slides, models, etc.) shall be used
in opening statements without agreement of opposing counsel or prior approval of
the Court.
16. Before the presentation of evidence, the Court will give the jury preliminary
instructions, including preliminary instructions on the law that it will apply on the
substantive elements of all claims and defenses.
B.

Preparation
1. Counsel shall familiarize themselves with the ZoomGov.com and Box.com
platforms

by

reviewing

the

tutorials

located

at

https://www.wawd.uscourts.gov/attorneys/remotehearings. Counsel shall also
familiarize themselves with the Special Master’s best practices.
2. Counsel shall ensure that they and each of their witnesses have the hardware,
software, data bandwidth and Internet access required to participate remotely. The
minimum

system

requirements

are

posted

at

https://www.wawd.uscourts.gov/attorneys/remotehearings.
3. Counsel shall also ensure that they have one or more alternative means of
communicating with their clients and witnesses, as well as with the Court, outside
the ZoomGov.com platform (e.g., by cellular phone, text and email).
4. Counsel shall consider establishing a high-speed Internet connection (a hard-wired
connection is generally preferable to a wireless Internet connection). Counsel shall
also consider whether others who require Internet usage during the proceedings
might impact a participant’s connection speed.
5. No later than 5:00 p.m. (CST) on Thursday, February 11, 2021, parties and
counsel must perform a technology check on their team for all trial participants.
Counsel are responsible for contacting the Special Master to perform the
technology check.

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C.

Recording
1. The Court will provide a court reporter for the trial. No part of the trial may be
reproduced, distributed or transmitted in any form or by any means, in whole or in
part, by any participant (attorney, party, witness or juror) or public observer. This
prohibition includes any audio or video recording, photographs and/or screenshots.
The parties and counsel shall ensure that each trial participant for which they are
responsible acknowledges and agrees to this prohibition.

D.

Witnesses And Participants
1. By no later than 3:00 p.m. on Friday, February 5, 2021, counsel shall provide via
email to (1) the Courtroom Deputy Andrea Schreyer (phone: [phone]; email:
[e-mail]) and (2) the Special Master the
following information for each party, attorney, paralegal, legal assistant, trial or
technical consultant, and witness who will participate remotely:
•

Name

•

Email address

•

Cell number

•

Participant status (e.g., party, attorney, witness, etc.), including whether the
participant should be allowed to participate in sidebar discussions

2. Prior to trial, the Courtroom Deputy will supply to counsel the links for the
ZoomGov.com sessions. Counsel shall forward the links to other case-related
participants, including witnesses, as appropriate. Non case-related participants
(e.g., insurance representatives, relatives of the parties, interested persons) may
NOT receive links to the ZoomGov.com sessions. Members of the public may
participate ONLY via the phone number listed above. On the Friday before each
week of trial, the Court will supply the ZoomGov.com link to be used throughout
the upcoming week.
3. After using the link to access the ZoomGov.com session, participants will enter a
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virtual waiting room. They will be admitted from the virtual waiting room into the
virtual courtroom when appropriate.

Counsel are responsible for notifying

witnesses when and how they will report to the virtual waiting room. Witnesses
shall report to the virtual waiting room no less than thirty minutes before their
anticipated testimony time.
4. Participants who will not be examining witnesses, testifying or otherwise
presenting matters during the proceedings (e.g., attorneys, paralegals, legal
assistants, and trial or technical consultants) shall use the ZoomGov.com platform
controls to mute their microphones and deactivate their cameras.
5. During the virtual trial, each party and all jurors will be visible on video with
microphones muted.
6. Except through ZoomGov.com, counsel and the witness are not to communicate
through any device or method while the witness is testifying.

Counsel and the

witness may not be in the same room.
7. By no later than 10:00 p.m. each evening of trial, for Zoom admittance purposes
counsel shall provide via email to (1) the Courtroom Deputy Andrea Schreyer
(phone: [phone]; email: [e-mail]) and
(2) the Special Master Robert

Ferguson (cell: 469-559-5568;

email:

[e-mail]) a list of witnesses expected to be called the following
day.
E.

Exhibits
1. Exhibits have been numbered in advance of trial in accordance with the protocol
set forth in the Second Order Setting Status Conference And Pretrial Filing
Deadlines (Doc. #529).
2. An online repository will be used to manage exhibits. Further instructions will be
forthcoming regarding management responsibilities.
3. Counsel are responsible for keeping accurate records of what has been admitted.
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At the end of each day of trial, the Courtroom Deputy and counsel will meet and
confer to confirm the record of admitted exhibits. After the close of evidence and
before the jury begins deliberating, the Courtroom Deputy and counsel will meet
and confer to confirm that an “Admitted Exhibits” folder in Box.com accurately
reflects the evidence admitted during the course of trial. During their deliberations,
the jurors will be provided access to the Box.com folder for “Admitted Exhibits.”
4. The Court does not need hard copies of stipulated exhibits, but hard copies of all
other exhibits shall be delivered to the Courtroom Deputy, Andrea Schreyer, at 500
State Avenue, Kansas City, KS 66101 by 5:00 p.m. on Wednesday, February 10,
2021. These exhibits shall be bound in three-ring notebooks and appropriately
tabbed by exhibit number.
5. While testifying, each witness shall have available a physical copy of any exhibit
that he or she will be expected to use or examine during the trial. The witness shall
not access any copy of an exhibit unless and until instructed to do so by the
examining counsel. With regard to exhibits as to which admissibility is disputed,
the Court will conduct proceedings outside the presence of the jury during which
counsel may present arguments and, if necessary, voir dire witnesses, using the
screen-sharing function in ZoomGov.com to display the exhibits at issue. To the
extent possible, the Court will rule on the admissibility of exhibits before a witness
who is expected to use or examine such exhibits testifies. Counsel are responsible
for alerting the Court of potential issues sufficiently in advance to permit such
rulings.
6. The use of exhibits for impeachment purposes is permitted only through the
following method: The parties shall deliver paper copies of exhibits intended solely
for impeachment purposes in a sealed envelope to the witness before trial. The
parties shall instruct the witness (1) to not open the envelope and (2) to have the
sealed envelope readily accessible when testifying remotely through Zoom. During
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trial, if examining counsel wants the witness to reference an exhibit for
impeachment purposes, the witness shall be instructed to open the sealed envelope
live on Zoom. The witness may then access the exhibits.
7. Video depositions that are used as substantive evidence shall be broadcast via
ZoomGov.com using the screen-sharing function.

If video depositions are

uploaded to Box.com, the recordings will not be transferred to the “Admitted
Exhibits” folder. Transcripts of depositions used during the trial for impeachment
or as substantive evidence need not be sealed prior to their use. Counsel may either
show the portion of the transcript at issue to the witness using the screen-sharing
function in ZoomGov.com or transmit the entire transcript to the witness via mail,
email or otherwise in advance of his or her testimony. The court reporter will not
take down deposition testimony that is read or played throughout the course of trial.
Pursuant to local rules, counsel shall file a notice containing the portions of
deposition testimony that are used.

If exhibits are mentioned in deposition

testimony that have not yet been admitted, counsel must seek admission in open
court before playing the video, and counsel are responsible for screensharing
through ZoomGov.com.
8. If a program or platform other than Box.com will be used to publish exhibits to the
jury, then counsel shall file, prior to the first day of trial, a certification signed under
penalty of perjury indicating that the exhibits to be displayed to the jury using the
other program or platform are identical to the exhibits uploaded into the folders on
Box.com. The parties may use trial presentation technology to present exhibits
through the screen share function in ZoomGov.com.
F.

Jurors
1. The Court will allow the jury to take notes to help them remember the evidence.
2. Using the “chat” function in ZoomGov.com, the jury will be allowed to propose
written questions to witnesses after counsel have completed their questioning of
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each witness. Before the Court excuses a witness, it will offer the jury the chance
to write questions in the “chat” feature in ZoomGov.com. The Court will review
any question with the attorneys at sidebar to determine if it is legally proper, but
will not identify the juror or jurors who have posed the question. If the Court allows
the question (either verbatim or reworded), it may ask the question or allow counsel
to do so. Counsel will be allowed to ask follow-up questions.
3. Those exhibits received in evidence will be provided to the jury on the “Box”
platform, and the jury will be able to view them in the virtual jury room. The
Courtroom Deputy will show the jury how to use the “Box” platform and how to
locate and view the exhibits. If a technical problem requires instruction during
deliberations, the Courtroom Deputy may enter the virtual jury room to help with
technology or, if assistance from the Special Master is required, for the sole purpose
of assuring that the only matter that is discussed is the technical problem. When
the Courtroom Deputy or the Special Master is in the virtual jury room, the jury
shall not deliberate. No juror may say anything to the Courtroom Deputy or the
Special Master other than to describe the technical problems or to seek information
about operation of the “Box” platform.
G.

Professionalism During The Trial
1. Ambient Noise Protocols:
a.

All participants who are not actively being questioned as a witness, asking
questions of a witness, defending a witness, or providing or responding to
opening statements, closing arguments, or other arguments, shall use the
ZoomGov.com platform controls to mute their microphone and deactivate
their video cameras.

The Special Master, who will “host” the

ZoomGov.com sessions, will mute any participant who fails to follow this
protocol.
b.

Participants using multiple devices in a single workspace to access the trial
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should avoid audio feedback issues by using the microphone and speakers
on only one device at a time, or by using headphones.
2. Courtesy And Decorum: To the extent possible, remote trial participants should
conduct themselves in the same way they would if they were physically present in
a courtroom. They should avoid interrupting someone who is speaking, except as
necessary to raise an objection. Virtual trial participants must silence electronic
devices other than the devices necessary to their remote participation, close
unnecessary computer programs or applications (such as email or calendar
notifications), and take steps to remove or minimize anything in their remote
workspace that might distract from the integrity of the proceedings. The Court
understands that conducting trial virtually, from one’s home, for example, presents
many challenges. The Court asks all remote participants to do their best to maintain
professionalism in order to conduct a fair and efficient trial.
3. Objections: Counsel should raise their hand to signal an objection. When an
objection is made, the witness shall stop talking until the Court rules on the
objection. If the objection requires a discussion outside the presence of the jury,
the jurors will be placed in the virtual jury room.
4. Disconnection: In the event that the Court, a party, an attorney of record, a witness,
a juror or anyone else necessary to the proceedings becomes disconnected from the
remote trial, the trial will stop until the connection is reestablished.

If the

participant has difficulty reconnecting, he or she should call or text the Special
Master. In advance of calling a witness to the virtual stand, counsel must establish
with the witness a protocol for contacting the witness in the event of disconnection
and ensure that the alternative means of communication (e.g., a cellular phone) is
operational.
5. Appropriate Dress: Parties, witnesses and counsel shall dress in the same manner
as they would if they physically appeared in a courtroom.
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6. Screen Names:

All remote participants shall use a screen name in the

ZoomGov.com platform that indicates their actual first and last names and role in
the trial proceedings. As “host,” the Special Master will rename any participant
whose screen name is incomplete, confusing, unprofessional or otherwise
improper. The number of characters is limited, so the following naming convention
is required:
• {First Initial}{Last Name} (Role), ex. J. Austen (Pla)
• Defendants: {First Initial}{Last Name} (Role–Defendant’s Last Name), ex.
J. Austen (Def Aty–Smith)
a.

Abbreviations for Role:
i. Pla for Plaintiff
ii. Def for Defendant
iii. Pla Rep for Plaintiff’s Representative
iv. Def Rep for Defendant’s Representative
v. Pla Aty for Plaintiff’s Attorney
vi. Def Aty for Defendant’s Attorney
vii. Witn for Witness

IT IS SO ORDERED.
Dated this 4th day of February, 2021 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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