COVID and Jury Trials in Massachusetts: Why Reducing Jury Size is Devastating in Medical Malpractice Cases

COVID Infects the Constitutional Right to a Jury: Supreme Judicial Court Recommends Lowering Jurors in Civil Trials to Restart Faster

The coronavirus known as COVID-19 has caused unprecedented disruptions throughout the world, including right here in Massachusetts. One of the largest professions disrupted during the pandemic has been the legal profession and the judiciary as a whole, specifically jury trials. This is particularly true in criminal matters where many individuals are long-awaiting delayed trials and sentencing. But civil cases are also heavily impacted, especially in major civil matters like medical malpractice cases. In fact, medical malpractice cases may be one of the most impacted and highest-stake type of civil case effected by the pandemic.

This is because medical malpractice cases often take much longer than slip and falls, breach of contract, divorces, or other civil matters. Medical malpractice trials typically involve a significant amount of evidence and several witnesses, mostly expert witnesses. The majority of these expert witnesses are medical professionals, many of them are in fields or are working at hospitals or facilities treating COVID patients. The combination of more evidence and witnesses means that jurors will generally take longer to review and debilitate while being exposed to expert witnesses who undoubtedly increase the risk of transmitting COVID. These deliberations are typically in a smaller, secluded room allowing the jury to carry out their vital civil duties as deputized by the Constitution and Massachusetts law, but also the ideal environment for spreading COVID.

Moreover, pragmatically medical malpractices are important types of civil cases because one party is personally injured and may have medical bills and lost wages, while the other party has their license, reputation, and livelihood challenged. But with the unprecedented Executive Orders from our Governor and the Orders from the Supreme Judicial Court prohibiting jury trials further, the judicial system has been slowed down significantly and attempts to restart have been culled by raising COVID cases both locally and nationally. Thus, alternative recommendations for jury trials are being explored by the Supreme Judicial Court to create better access to justice and to safely restart jury trials within the purview of the Constitution while limiting COVID transmission and exposure risks.

One of those alternative recommendations raised by the Supreme Judicial Court is reducing the size of juries from twelve jurors to six jurors in order to limit the risk of infection and promote social distancing during a trial. While this goal of increasing access to justice is laudable and all parties deserve to get back into a courtroom, and while our lawyers at McCarthy Bouley Barry + Morgan look forward to returning to a courtroom to protect our clients’ rights, our medical malpractice defense lawyers fear that this recommendation will be the impetus for the COVID casualty—our Constitutional rights to a just and fair jury trial.

Massachusetts Constitution Guarantees a Right to a Jury Trial

While the reduction from twelve members of a jury to six members of a jury may not sound drastic, the historical significant is monumental. For over two centuries, the Massachusetts Constitution has afforded the right to a jury trial in all civil cases that request one. This is a sacred right held by all litigants, and steadfastly protected by the common law, or judge-made decisional law. Further, statutory law, or legislatively-made law, has unequivocally required in superior court for there to be no less than twelve members deliberating to a verdict unless the parties stipulate to a reduced number. Therefore, alternatives to reduce the size of a jury would encroach on all facets of Massachusetts law from the Constitution, decisional law, and statutory law.

Why Less Jurors Means More Trouble for Medical Malpractice Cases

Unlike any other type of civil case, medical malpractice cases require an extensive knowledge of both law and medicine—two of possibly the most complicated disciplines. Cases often require voluminous medical records, transcripts, imaging studies, reports, and other documents that absorb more time and demand more care to review and understand. Further, some complicated medical malpractice cases may require a significant number of expert witnesses who are often used to help explain these records, reports, and other evidence against the applicable standard of care. This means that medical malpractice cases not only contain more information to digest, but also require more credibility assessments of witnesses that must be carefully evaluated by a jury.

Thus, reducing the number of jurors from twelve members to six members affects all of these traits in a negative manner as it relates to rendering a just and fair verdict. This is supported by scientific research. A report by the American Psychological Association evaluated whether justice was best served by juries of six members or twelve members. The initial hypothesis was that smaller juries could have a greater potential to go “rogue” and issue verdicts that vary greatly from similar cases and therefore create a wide and inequitable range of verdicts. Whereas larger juries would be more stable and allow all members of the jury, even individuals holding the minority belief, to still have allies in the deliberation room to support their beliefs and encourage them to articulate their position better to all members of the jury.

After conducting a series of experiments against their hypothesis, the American Psychological Association validated their initial beliefs and definitely found that twelve member juries were more beneficial and consistent than juries that consisted of just six members. The findings specifically found that larger groups debated more vigorously and collectively recalled more evidence from the trials that resulted in more consistent and predictable decisions than smaller juries. Of particular mention was that smaller juries were more likely to render erroneous verdicts and give damage awards that are more unpredictable from a case-by-case basis, as well as miss some evidence presented a trial.

In a medical malpractice case where there is a significant amount of evidence, all crucial and important to protecting the rights of a party, having a jury that is more likely to be both unpredictable and miss key evidence presented at trial is a serious risk to the Constitution’s requirements for a just and fair jury.

Looking at Our Neighbor New York with Six Member Juries

Not only does the American Psychological Association report back up the belief that smaller juries can result in erratic damages verdicts, but looking at other states also supports this notation. For instance, New York uses six person juries for civil matters including medical malpractice cases. According to medical malpractice payouts from 2019, the annual report reveals that New York leads the nation in medical malpractice verdicts with over $35 billion paid out on claims or verdicts. This is a staggering amount that is surely linked to the difficulty of medical malpractice cases coupled with the smaller jury size that is more unpredictable and recalls less evidence during deliberations.

Why Massachusetts Should Hold On for Vaccine Administration to be Completed Rather Than Make Groundbreaking Constitutional Changes

While both the medical research and empirical data demonstrate that twelve member juries are more likely to deliver just and fair results over six member juries, any type of manipulation by the Supreme Judicial Court could be disastrous for medical malpractice parties. This is particularly true because the burden of proof, also known as the burden of persuasion, requires a party to establish a claim by a “preponderance of the evidence.” Unlike the more common “beyond a reasonable doubt” standard that requires convincing up to 98-100%, the preponderance of the evidence standard is just 51% or that a party has “more likely than not” proven their case. When it comes to a healthcare provider’s license, reputation, and livelihood, it simply does not make sense to allow a six member jury to decide this over a twelve member jury.

In addition, allowing six member juries to go forward now would mean that Executive and Judiciary-issued orders governing COVID restrictions and safety protocols must be followed. But many of these restrictions can make it more difficult during trial for a trier of fact. This includes some of the following restrictions and their related issues:

Proper PPE – the use of a mask is the primary tool in preventing COVID transmission, but is also makes it must harder to assess the credibility of a witness as many facial expressions (including micro-expressions) are hidden or concealed.

Face shield – while often translucent, reflections from overhead lights also make it more difficult to assess credibility as well as not being as effect as a mask for preventing the spread of COVID.

Videotaped/recorded witnesses – although the use of technology has been growing in Massachusetts courts with the recording of deposition/examination before trial (EBT) testimony as well as trial testimony, jurors are still easily bored while watching a video of testimony as opposed to having a live witness.

Sharing of evidence – as COVID can be spread through touching respiratory droplets that have landed on objects like evidence, this may have a “chilling effect” on jurors not wanting to properly touch and review evidence during deliberations which means parties are not getting a just and fair deliberation.

Social distancing – while another primary way to prevent the spread of COVID, ensuring that all parties witnesses, court personnel, jurors, counsel, parties, and others in a courtroom just means that individuals will have be to further away and that could make it more difficult for jurors to see evidence, hear witnesses, and otherwise meaningfully participate. This also has an unintentional effect against older members of a jury who may already have difficulty hearing or seeing, and will undoubtedly have more trouble if social distancing is followed.

Moreover, while the salutary goals of restarting jury trials with proper social distancing is laudable, the truth is whether it is six or twelve people deliberating in a jury room the risk of transmitting COVID in that small, often windowless room is just the same in a medical malpractice given the usual length of deliberations naturally being longer in these types of cases. With the aggressive rollout of the COVID vaccine and the predictions that the infamous herd immunity will likely start to become noticeable at the end of the summer or fall, taking this shortcut to reduce jury size could make the parties of medical malpractice cases new victims to this pandemic. 

We Advocate For Your Rights in Massachusetts

Like courts all over the country and the world, Massachusetts courts have been significantly impacted by the coronavirus known as COVID-19. While our experienced lawyers at McCarthy Bouley Barry + Morgan look forward to protecting our client’s rights in a courtroom, this truly can only be achieved when the COVID vaccine has been properly administered. Reducing jury size and altering the well-entrenched rights of litigants, especially professional clients like ours fighting to clear their name and protect their livelihood, deserve what is constitutionally afforded to them. To our clients, their families, and to our prospective client, know that you can rely on our law firm to lead you during turbulent times during the pandemic just as you can before or after the pandemic. We stand committed and protecting your rights. Learn more today during a FREE consultation by dialing 617-225-2211 or use our convenient and easy-to-use “contact us” form available here.