Mickelsen et al v. Aramark Sports & Entertainment Services

Filing 232

MEMORANDUM DECISION AND ORDER overruling 214 Objections to Trial Location and Protocols. Signed by Judge David Nuffer on 4/27/21 (alt)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
STACY MICKELSEN, KIRK R. MICKELSEN and
AMY V. BELLUM,
Plaintiffs,
v.
ARAMARK SPORTS & ENTERTAINMENT
SERVICES,
Defendant,
and,

MEMORANDUM DECISION AND
ORDER OVERRULING [214]
OBJECTION TO TRIAL
LOCATION AND PROTOCOLS
Lead Case No. 4:18-cv-00072-DN-PK
Member Case No. 2:18-cv-00158-DN
District Judge David Nuffer
Magistrate Judge Paul Kohler

IN THE MATTER OF COMPLAINT OF SUMMER
PARADISE, INC., ROGER COMSTOCK, TRACEE
COMSTOCK, PRESTON MILLER, SANDY
MILLER, BRIAN HORAN, KIM HORAN, DAVE
DANIELS, BUD BULLARD, KRISTI BULLARD,
CRAIG CURTIS, EARLYN CURTIS, DONALD
BELLUM, STEVE MILLS, GREG PICKEREL,
GINA PICKEREL, TROY SEYFER, GLENN
LEWIS, REX ROLLO, NADINE ROLLO, STEVEN
TYCKSEN, RUTH TYCKSEN, ROGER COOK,
COLLEEN COOK, and KEVIN DANIELS as
Owners or Owners Pro Hac Vice of a 2001 73-foot
Stardust Houseboat “SUMMER PARADISE” for
Exoneration from or Limitation of Liability,
Petitioners.
Aramark Sports and Entertainment Services, LLC dba Lake Powell Resorts and Marinas
(“Aramark”) made preliminary objections 1 to the proposed protocol and location of the June jury
trial setting in the negligence action, 4:18-cv-00072-DN-PK. The objections are a thoughtful and
Aramark Sports and Entertainment Services, LLC’s Preliminary Objections to Proposed Protocol and Location for
June Jury Trial (“Objections”), docket no. 214, filed April 16, 2021.

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detailed critique of holding a trial in the current COVID-19 conditions. The objections reflect the
many considerations balanced in the various orders and communications from the court
regarding the trial setting and location, including:
•

Trial Order, docket no. 207, filed April 13, 2021, now superseded by Amended Trial
Order, docket no. 218, filed April 21, 2021;

•

COVID-19 Trial Order Addendum, docket no. 207, filed April 13, 2021;

•

Supplemental Trial Order for Virtual Jury Voir Dire (counsel in courtroom), docket
no. 210, filed April 15, 2021; and

•

Email, April 16, 2021, to counsel regarding trial room layouts, docket no. 231, lodged
April 27, 2021.

In summary, this trial which has been set previously for September 2020 2 and March 15,
2021 3 is now set for June 7, 2021, 4 under COVID-19 conditions and with virtual jury selection,
at the University of Utah S. J. Quinney School of Law. The 15-20 day jury trial is followed by a
companion bench trial in July 2021. COVID-19 is unusual. Virtual jury selection is unusual.
Holding a trial outside a courthouse is unusual.
All parties agree the case seeks compensation for tragic events, resulting in one death and
injuries to several others on a houseboat on Lake Powell in July 2017. “This case will likely take
approximately 16 trial days to complete, require testimony from over 50 witnesses and 9 experts,
and be attended daily by nearly two dozen counsel, parties, party representatives, and witnesses,
plus court personnel and jurors.” 5 The parties earlier estimated that twenty counsel, support staff
and party representatives would be present. Ten jurors will be selected. Eight to ten court staff
would be present. In sum, about forty persons must attend this trial.
2

Scheduling Order, docket no. 30, filed March 7, 2019;

3

Order Granting Joint Stipulated Motion to Amend Scheduling Order, docket no. 148, filed September 24, 2020.

4

Amended Scheduling Order, docket no. 189, filed January 11, 2021.

5

Objections at 2.

2

Reserving “the right to amend [its preliminary] objections and raise additional
objections,” Aramark objects because:
The trial is outside a courthouse. 6 A trial with this many participants cannot be safely
conducted in a courtroom with physical distancing required to safely conduct a trial while
COVID-19 is still prevalent. This objection is essentially a request that the trial not take place
until the pandemic is entirely abated. No one can predict when COVID-19 risk will be
eliminated, due to the many variables, such as vaccination percentages in the population, variants
of COVID-19, and public non-compliance with health guidance. The only safe way to conduct
this trial at this time, or the foreseeable future, is as outlined in the COVID-19 Trial Order
Addendum which include:
• properly worn face masks;
• Plexiglas™ barriers (when available and needed due to proximity or lack of masking);
• increased air circulation and outside air mix;
• physical distancing of six feet at all times;
• regular surface cleaning,
• hand sanitizer,
• no items, including exhibits, will be passed to court staff, parties, witnesses, or jurors;
• meals brought in for jurors,
• restrictions on social activities between trial days;
• trial participant health questionnaires;
• temperature screening (when available); and
• rapid testing (when available).
As discussed later, Aramark’s motion is essentially for an indefinite continuance.
Aramark needs “an opportunity to physically inspect the proposed location with the
proposed layout.” 7 The parties have received a diagram of the layout for trial and a photo of the
trial location. 8 The parties will have an opportunity to inspect the trial location on May 7, 2021,

6

Id. at 4.

7

Id. at 5.

8

Email, April 16, 2021, to counsel regarding trial room layouts, docket no. 231, lodged April 27, 2021.

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at 2:00 p.m. Details will be given when final arrangements are made. The trial location will not,
however, be set up in trial layout at that early date but the trial location will be arranged on the
date of the virtual voir dire on June 4, 2021.
The trial location (including social distancing) may “impinge in-person attendance
at trial by LPRM’s representatives and the public.” 9 Any trial in these times restricts physical
access to the essential parties. But trial access can be improved by video and audio streaming.
The court is making efforts to arrange streaming. Streaming may also reduce travel needs for
some witnesses or participants.
The trial is being held under COVID-19 conditions but the “anticipated trial
practices conflict with local public health orders and CDC guidance.” 10 The District of Utah
Petit Jury Trial Plan was developed with the review of the Salt Lake County Health Department.
Because the District of Utah Petit Jury Trial Plan allows the judge, interrogating counsel, and an
active witness not to wear a mask, local orders requiring mask wearing will not be observed for
testifying witnesses and examining counsel. (The judge in this trial will always wear a mask.)
This is consistent with public conferences of health and government leaders throughout the
pandemic where critical messages are delivered without masks.
Also, because the trial room will seat about forty people, local orders about group size
limitations will be violated but the six foot spacing of forty people in a 4,500 square foot room
with 100% fresh air ventilation does not violate the principles of the health orders. The large
rooms at the University of Utah S. J. Quinney School of Law are possibly the safest place in the
United States to hold a trial. And the limited removal of masks by examining attorneys and

9

Objections at 6.

10

Id. at 5.

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active witnesses may be mitigated by face shields, plexiglass barriers, and small HEPA filtration
units.
The COVID-19 jury questionnaire proposed by the court asking about mask
wearing and social distancing may “affect the political makeup of the [jury] panel.” 11 The
purpose of the jury questionnaire is to determine who has a genuine safety concern and should be
excluded from the panel for their own protection or who presents a safety risk and should be
excluded for the protection of others. Jurors are regularly asked questions regarding sensitive
issues that may arise during trial and whether they will follow the law as instructed, which may
also secondarily implicate political views, but these questions, like the health questions, are
justified by the circumstances.
Questions for jurors about recent positive COVID-19 tests, symptoms or suspicions
of infection, and close contact with someone who is suspected to have COVID-19 may
“affect the racial makeup of the panel” due to “COVID-19’s disproportionate effect on
communities of color . . . .” 12 The regrettably higher impact of COVID-19 on communities of
color is very real. And it may be that these questions would have an incidental impact on jurors
from those communities. But the racial impact is not yet shown and is certainly not intended.
“Masks will make it impossible for counsel to observe the jury and for the jury to
observe parties and counsel outside of the limited time of actual examination.” 13 In light of
the large number of trials, including the recent high-profile jury trial in Minnesota, 14 conducted

11

Id. at 7.

12

Id.

13

Id. at 6.

How COVID will make Derek Chauvin's trial in George Floyd's death look like no other - ABC News (go.com)
https://abcnews.go.com/US/pandemic-looms-derek-chauvins-trial-george-floyds-death/story?id=76395755 (last
visited April 21, 2021).
14

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with masks and distance and barriers, and without any empirical evidence, this objection is not
well supported by fact or experience. The principal communicators – examining attorneys and
testifying witnesses – can be observed. During virtual voir dire, jurors at remote locations do not
need to wear masks, so counsel can get to know the jury panel.
“[T]here is a risk that jurors will be distracted by the COVID-19 health and safety
protocols and fear for their own health and the health of their families.” 15 There is no
question that COVID-19 causes stress. But justice has moved ahead with in person sentencings,
in person hearings, and video hearings (which involve movement of prisoners from cells. By
now, most of us are so used to the prevalence of COVID-19 that it is a new normal, not a
distraction.
“If a member of the jury, court staff, counsel, or a party tests positive for
COVID-19, there is a high likelihood that other trial participants would have to self-isolate,
causing a mistrial.” 16 With adequate precautions, this risk can be managed. Other trials in civil
and criminal cases are ongoing under these conditions, and interruptions due to infection or risk
of infection are not the norm. Alternate jurors will be selected. And the court will, and the parties
should, be prepared in the event extra or replacement staff is needed.
“[Aramark] reiterates and renews its objection to the trial being held outside of St.
George, and to the jury panel being drawn from outside of the Southern Region.” 17 The
usual location for trials in the court’s Southern Region is St. George, and many juries are drawn
from the Southern Region. However, the State courthouse in St. George (which houses the
federal courtroom) is not open; the Southern Utah counties are still at high transmission risk; and
15

Objections at 8.

16

Id.

17

Id. at 2.

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the courtroom could not accommodate a trial this size regardless of the COVID-19 pandemic. An
alternative site was explored but the costs of travel for Plaintiffs’ witnesses, including experts
was prohibitively high, in part because of reduced air service to the area as a result of
COVID-19. Nothing in any court document declares that this trial must be held in St. George or
that the jury must be drawn from the Southern Region. The court’s General Orders give leeway
for independent decisions for Southern Region cases. 18 While previous trial settings were in St.
George, current information on the size of those attending this trial makes that impossible. Under
COVID-19 conditions, the St. George coutroom can accommodate six counsel and parties; ten
jurors; four court staff; two security officers; and three other persons. That is about half the
number who need to attend this trial.
COVID-19 conditions require the trial be held in Salt Lake City, outside the courthouse,
with a jury drawn from the area least likely to require distant and overnight travel.
ORDER
After careful consideration, Aramark’s objections 19 are OVERRULED.
SIGNED this 27th day of April, 2021.
BY THE COURT:

David Nuffer
United States District Judge

“As the resident United States District Judge in St. George, Judge David Nuffer is granted emergency authority to
promulgate rules and procedures for Southern Region proceedings . . . .” General Order 21-003, Court Proceedings
and Court Operations During the Coronavirus (COVID-19) Pandemic, ¶ 14.

18

19

Docket no. 214, filed April 16, 2021.

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