The California Supreme Court has denied an emergency request from attorneys for the California State University Board of Trustees to halt the largest civil trial in San Bernardino County since the start of the COVID-19 pandemic amid fears it could become a virus super-spreader event.
As a result of the decision Tuesday, Nov. 24, jury selection that began Nov. 10 will continue Monday in a courtroom where 22-year-old Marissa Freeman is suing the CSU system for more than $25 million in economic damages, excluding additional damages for pain and suffering.
Freeman suffered brain damage in September 2018 following a 5-mile jog during a kinesiology class at Cal State San Bernardino. Angel Castro, who taught the class, also is named as a defendant in the suit.
“While California State University understands that trial judges want to start moving civil cases forward to jury trials, this is the wrong case at the wrong time,” Susan Westover, assistant vice chancellor and chief counsel for CSU, said in a statement. “With COVID-19’s third wave hitting California hard, this is not the time to force a six-week trial involving some 35 participants forward, particularly since there is no statutory basis for this case to have to go to trial now.”
Westover said it’s “ironic and telling” that jurors and other trial participants were strongly discouraged from gathering with their families for Thanksgiving, but have been ordered to sit inside the courtroom with total strangers for five to six hours a day.
“California State University is disappointed that the California Supreme Court did not stay this ill-advised trial, but, more importantly, still hopes that the court will provide specific guidance to the trial courts as to how they should decide which of the thousands of civil cases waiting in the queue should go to trial first,” she said.
Brian J. Panish, an attorney representing Freeman, said he is pleased the trial will move forward.
“I believe it’s safe to hold the trial and that the court has taken all precautions giving my client her constitutional right to a trial by jury,” he said.
Freeman was required to complete the run as part of a physical fitness test on the first day of the kinesiology class amid temperatures in the mid-90s, according to her attorneys.
“The temperatures were very high and presented a serious risk of heat stroke to any participants in an athletic event outdoors,” the lawsuit says. “Other students in the class witnessed Freeman faint and collapse to the ground and went to inform Castro and others of Freeman’s serious condition. It was only after Freeman had been laying on the ground for a substantial amount of time that any aid and/or paramedics arrived.”
CSU says it’s not responsible
The CSU trustees have denied Freeman’s allegations and maintain she overexerted herself.
“CSU was shocked when the incident occurred, and wishes only the best for the plaintiff and her family,” Westover said. “The university, however, does not believe it is responsible for plaintiff’s injuries. Plaintiff, with 50 other students, participated in a kinesiology course exercise, which was not graded. The course instructor advised students to jog or walk at their own pace. In addition, students were advised to hydrate, stop for shade at their discretion, and not push themselves.
“Unfortunately, plaintiff collapsed at the end of the exercise. She was later diagnosed as suffering from exertional heat stroke, an extremely rare incident and condition.”
Attorneys representing CSU trustees filed a petition Nov. 3 with the California Court of Appeals seeking an immediate stay of jury selection, but that request was denied without comment. The petition to the state Supreme Court was sent Nov. 12.
Jens B. Koepke, an attorney for the CSU system, and Castro argued in a 46-page emergency petition to the Supreme Court that jury selection should be postponed because dangers from COVID-19 are ravaging San Bernardino County.
Trial poses COVID-19 threat
“If the trial moves forward before this court decides this petition or addresses the merits of the case, the potentially fatal COVID risks cannot be remedied,” Koepke said. “The crisis here is obvious. This in-person jury trial has the real likelihood of becoming a COVID super-spreader event, just as the pandemic is surging across our country and the world.”
On Tuesday, San Bernardino County recorded 2,366 new confirmed coronavirus cases — the second highest one-day jump since the pandemic began in March. The county also remains in the state’s most restrictive COVID-19 purple tier category, requiring the closure of many indoor businesses, such as restaurants, movie theaters and museums.
Koepke’s petition also notes the trial could put several attorneys, witnesses and also Freeman at risk for COVID-19 because they fall into high-risk categories due to their age or preexisting medical conditions.
“And, of course, it is not just the trial participants who are put at risk, but all of their family members,” the petition says.
Stephen G. Larson, an another attorney representing Freeman, described the Supreme Court petition as a stall tactic. “Petitioners stubbornly persist in their desperate attempt to delay being held accountable for their negligence in causing serious injuries to plaintiff,” he wrote in opposition to the petition.
Furthermore, attorneys for the CSU trustees failed to present any legal or factual justification for the Supreme Court to second-guess San Bernardino County Superior Court Judge Lynn M. Poncin’s “carefully reasoned determination” that the trial can safely proceed, Larson said.
Precautions taken
Courtroom precautions to guard against COVID-19 include the installation of plexiglass dividers separating staff and witnesses, Poncin said, according to the transcript of a Nov. 17 hearing.
Jurors, attorneys and others involved in the trial will be required to sit at least 6 feet apart. Hand sanitizer will be available. Face coverings will be required for everyone except witnesses, who will wear face shields. Additionally, witnesses will be provided disposable microphone covers, and, if they choose, will be permitted to testify remotely via the Zoom video meeting service.
Jury deliberation will occur in the courtroom rather than a deliberation room to ensure social distancing. Also, the courtroom will be sanitized at the end of each day.
All of the precautions have been approved by the San Bernardino County Department of Public Health.
“The court is trying to facilitate and do everything it can to maintain the safety and security of all the people who come within this courtroom,” Poncin said, according to the transcript.
