Berman & Simmons attorney Daniel Kagan teleconferences Wednesday afternoon with fellow attorney Chris Boots from his back porch in Freeport. Russ Dillingham/Sun Journal Buy this Photo

LEWISTON — Daniel Kagan’s client suffered a serious brain injury several years ago and filed a lawsuit.

Normally, the pretrial routine for the longtime Maine resident who lives in Massachusetts would have included questioning by opposing attorneys during a deposition in a law office, with the Lewiston lawyer by her side. She also would undergo medical examinations by doctors chosen by the defendants.

But, in the novel coronavirus environment, those actions are no longer routine. Some procedures that would be considered normal in a civil case now require more planning and might be delayed for months — or longer — depending on when life returns to normal after the threat of COVID-19 has lifted.

The virus has complicated these typically straightforward pretrial processes for plaintiffs who’ve filed lawsuits seeking compensation for damages caused by someone else. And the courts in which they file those complaints, both state and federal, have suspended civil hearings and trials until it’s safe again to open their courtrooms without risk of infection.

Kagan, a 32-year veteran litigation attorney at the Lewiston law firm Berman & Simmons, said what can already be a stressful process for injured clients has been made many times more so because of this virus.

His client, in this case, is older than 60, which puts her into a higher risk category if she were to contract the coronavirus.

There are five other lawyers representing defendants in the case, each of them entitled to question his client before this case were to go to trial.

Berman & Simmons attorney Daniel Kagan teleconferences Wednesday afternoon with fellow attorney Chris Boots from his back porch in Freeport. Russ Dillingham/Sun Journal Buy this Photo

Although both Kagan’s office and home are equipped with the technology to hold depositions by video conference, not every lawyer or client is equally equipped with that technology, he said from his home office in Freeport.

If his elderly client lacks the technological equipment or savvy to be questioned via video conference, what happens to the legal process? And what are the options for the defendant’s lawyers?

“What do they do? Do they insist that she come in person?” Kagan asked. “If they do that, I’m going to have to object, because it puts her at personal risk, and then a judge is going to have to be asked to decide, ‘Well, does she have to appear in person?'” he said.

If a defendant seeks to have a doctor examine Kagan’s client, which they have a right to do, she risks exposure by going to a doctor’s office, if those offices are even seeing patients in person.

An X-ray or some other type of imaging might be required so that lawsuit could go forward. But if those tests are not emergency procedures, most hospitals are likely to turn her away because they’ve suspended all elective medical procedures.

Kagan said he understands why, in some cases, opposing lawyers might insist on those things that may not be possible in this climate of home confinement. They are simply doing their jobs, he said.

“They’re not bad people,” he said. “They don’t want to expose her, but they have their own clients to answer to. So, do they make an issue out of it? Force her to show up in front of a doctor? It’s a tough call.”

William C. Herbert III, a litigation attorney and partner at Hardy, Wolf & Downing’s Lewiston office, said the personal injury clients represented by his office are suffering.

“In the best of times, these are people confronting what might be the most challenging, emotionally draining, isolating and painful time of their entire lives,” he said. “In the post-coronavirus world, this is truer than ever.”

Immediately after a serious accident, injured people need medical treatment to get better, he said, such as surgery, therapy, medications, and follow-up visits.

“Frequently, time is of the essence — the longer one goes without treatment, the harder it becomes to fix the problem,” he said.

But, echoing Kagan’s frustration, Herbert said those nonemergency treatments have been suspended for as long as the coronavirus continues to pose a risk.

In Auburn, the Androscoggin County Superior Courthouse has locked its doors. Although plaintiffs can still file complaints by mail and clerks are available by phone, nothing is happening in the courtrooms.
All deadlines for civil cases have been extended for seven weeks.

That means a defendant named in a lawsuit, who had a month to respond after being served, now has 10 weeks to respond. Same for discovery and motions, according to a clerk at the court.

At the U.S. District Court in Portland, plaintiffs can still file complaints, but not in person at the courthouse.

Civil jury trials have been postponed through May. Deadlines for motions have been extended at least one month, according to a standing order posted by the court late last month.

The closure of courts “has given insurance companies more leverage to deny paying for medically necessary treatments,” Herbert said.

“On top of that, many of our clients work in the service industry and other nonessential jobs, which means they are not working right now and do not have the financial resources to pay for their treatments out-of-pocket. As a result, our clients are not getting the treatment they need.”

Treatment following an injury is often “excruciating, expensive, frustrating, and slow — but it is also often our clients’ only hope for returning to some sense of pre-accident normalcy,” Herbert said. “The coronavirus crisis is diminishing that hope every day.”

One thing that hasn’t changed is the statute of limitations on filing a lawsuit, which is the amount of time allowed to pass between the date of an event, such as an injury, and the date the complaint is filed with the court, Kagan said.

“Time could be running out on your potential claim,” said Christopher Boots, another attorney at Berman & Simmons. “The only way to know for sure about the statute of limitations in your specific case is to speak with an experienced personal injury lawyer as soon as possible.”

Kagan said this isn’t the first time the courts may bog down. In the past, they have bogged down with a backlog of cases due to short staffing, among other reasons. A natural disaster, such as an ice storm, can close down the courts for days or weeks, delaying cases in a court’s pipeline.

For a couple of years in York County, the courts weren’t scheduling civil trials because they lacked sufficient space to hold them, Kagan said.

“It was not the way you want things to happen,” he said. “But, somehow justice still got done. Cases found a way to get through.”

Although the U.S. Constitution guarantees the right to a speedy trial, it doesn’t apply to civil cases, Kagan said.

For that reason, when the courts reopen for business as usual, the trial dockets are expected to be filled with a backlog of criminal cases, which will take priority over civil cases.

When that happens, the courts are expected to urge recently retired superior court justices back to the bench to preside over that backlog of cases, Boots said.

The state’s medical malpractice screening panels that decide which malpractice complaints are worthy of proceeding to court are not meeting now due to the coronavirus pandemic, according to Boots, who handles malpractice claims.

Someone who has suffered a serious brain injury can take years to recover, if they ever recover completely, Kagan said.

Treatment can include specialists who work with patients on refocusing parts of the brain that control vision and balance.

Part of the award Kagan will be seeking for his client will be to pay for that treatment, which often is not covered by health insurance.

“I’s expensive. It’s really expensive,” he said. “It’s my job to make sure she gets paid back for it.”

The longer the delay in a civil suit, the longer it will take the plaintiff to recover those costs, he said.
In some cases, even though the courts are stalled, attorneys can continue to work through pretrial procedures on their own, including court-mandated mediation or settlement conference, if all of the lawyers are equipped with the proper videoconferencing tools, Boots said.

“It’s an adjustment, but we really haven’t missed a beat at Berman & Simmons,” Kagan said. Citing his firm’s consistent investment in technology, Kagan explained, “it’s not like it would have been 10 or 20 years ago” when most companies wouldn’t have had the computer technology that would have enabled their employees to work from home.

Herbert said his firm has been practicing ‘in the cloud’ for years and continues to operate remotely. “We have relationships with defense counsel and insurance adjusters that have developed over decades of doing this work, which allow us to continue facilitating settlements for people who need additional resources now more than ever.”

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