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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS SUPERIOR COURT DEPARTMENT OF
THE TRIAL COURT
MARY FULLER, Individually and as Per-
sonal Representative of the Estate of JOHN
FULLER,
Plaintiff,
v. Case No. 1672-CV-00154
R. J. REYNOLDS TOBACCO COMPANY,
GARBER BROS., INC., and CUMBER-
LAND FARMS, INC.,
Defendants.
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO RESET TRIAL DATE
DUE TO THE COVID-19 PANDEMIC
Plaintiff Mary Fuller urges this Court to push forward with a multi-week civil jury trial
despite a recent outbreak of COVID-19 in Barnstable County that was so severe it prompted the
CDC to change its nationwide guidance. She claims that the COVID-19 rates have “dropped
markedly.” Opp. ¶ 6. But the data tells a different story. The current daily average of new
COVID-19 cases in Barnstable County is 28—which is 21.7% higher than the daily average for
the original May 4, 2020, trial date (23), which this Court continued due to COVID-19. See Track-
ing Coronavirus in Barnstable County, Mass., N.Y. Times, available at https://ti-
nyurl.com/3ttmer98 (last visited Aug. 14, 2021). The number of hospitalized COVID-19 patients
in Barnstable County has also increased by 27% in the last 14 days. Id. The situation is no better
statewide: In Massachusetts, coronavirus-related hospitalizations are up 60% in the last 14 days
(for a daily average of 307 hospitalizations). See Tracking Coronavirus in Massachusetts, N.Y.
Times, available at https://tinyurl.com/4me4w987 (last visited Aug. 14, 2021). The current daily
average of new COVID-19 cases in Massachusetts is 1,156—a 76% increase in the last 14 days.
Id.
Ms. Fuller acknowledges (as she must) that the recent COVID-19 outbreak in Barnstable
County occurred over the Fourth of July weekend. Brianna Abbott, CDC Says New Mask Guide-
lines Informed by Cape Cod Outbreak, WSJ, July 30, 2021, available at https://ti-
nyurl.com/47dvhmkc (last visited Aug. 14, 2021). Jury selection in this case is scheduled to begin
the morning after Labor Day, another summer holiday where “extremely large gatherings, both
outdoors and indoors” are expected. Opp. ¶ 6. While some parts of Barnstable County are under
an indoor mask mandate, id., that does not prevent the transmission of the highly contagious Delta
variant in gatherings in private homes or at large outdoor events—all of which are believed to have
contributed to the July Fourth resurgence. See Catherine M. Brown, DVM et al., Outbreak of
SARS-CoV-2 Infections, Including COVID-19 Vaccine Breakthrough Infections, Associated with
Large Public Gatherings — Barnstable County, Massachusetts, July 2021, CDC, July 30, 2021
(“CDC Barnstable County Report”), available at https://tinyurl.com/8vrp4ne8 (last visited Aug.
14, 2021). Summoning 50 to 60 jurors for voir dire the morning after a three-day stint of house
parties and large gatherings where COVID-19 is likely to run rampant—even among the fully
vaccinated—presents a serious public-health risk.
Ms. Fuller accuses Defendants of last minute attempts to push the trial date. But Defend-
ants promptly moved for a continuance just four days after the CDC cited the Barnstable County
outbreak as the basis for its revised guidance. See CDC Barnstable County Report. Defendants
thought it particularly important to bring this issue to the Court’s attention given that the CDC
-2-
guidance came four days after the Court had, at a July 23 status conference, revised the trial sched-
ule to provide for jury selection to start the day after Labor Day, when COVID-19 rates can be
expected to again spike.
Ms. Fuller’s dismissal of this rapidly evolving public-health crisis as a pretext for delaying
trial could not be further from the truth. There is no way Defendants could have predicted this
recent outbreak of the Delta variant, the full effects of which came to light only after the July 23
status conference. Indeed, after the status conference, the nation’s foremost public-health experts
expressed shock over the Barnstable County outbreak. See Anne Flaherty & Arielle Mitropoulos,
CDC mask decision followed stunning findings from Cape Cod beach outbreak, ABC News, July
29, 2021, available at https://tinyurl.com/36nsk5nx (last visited Aug. 14, 2021). The Barnstable
County outbreak led the CDC to declare that the “war has changed.” ‘The war has changed,’ CDC
says, calling for new response to Delta variant, Reuters, July 30, 2021, available at https://ti-
nyurl.com/35fa297k (last visited Aug. 14, 2021). Barnstable County’s acting epidemiologist and
deputy director of human services, Vaira Harik, called the outbreak “far in excess” of what experts
anticipated. Is Provincetown —Cape Cod’s COVID-19 Cluster Among Vaccinated Folks —A Vac-
cine Success Or Failure? WBUR, July 23, 2021, available at https://tinyurl.com/52xwjdm4 (last
visited Aug. 14, 2021). Perhaps most stunning is the variant’s rapid spread among the fully vac-
cinated, leading the CDC to warn that the variant is more transmittable than the chickenpox. Paul
LeBlanc et al., CDC document warns Delta variant appears to spread as easily as chickenpox and
cause more severe infection, CNN, July 30, 2021, available at https://tinyurl.com/3bxfvtwp (last
visited Aug. 14, 2021).
Finally, Ms. Fuller points out that the Court is currently conducting a jury trial in a murder
case. Opp. ¶ 8. But that is only another reason to continue this trial: So the Court can dedicate
-3-
its limited resources to clearing the backlog of criminal cases, which involve constitutional and
statutory timing concerns that simply are not present in civil cases. Indeed, the Supreme Judicial
Court encouraged trial courts to prioritize trials in criminal cases as coronavirus restrictions eased.
See Fifth Updated Order Regarding Court Operations Under the Exigent Circumstances Created
by the COVID-19 (Coronavirus) Pandemic ¶ 9, Feb. 24, 2021, available at https://ti-
nyurl.com/2x7yssdj (last visited Aug. 2, 2021).
Although the Supreme Judicial Court has lifted the moratorium on jury trials, this Court
retains its vast discretion to continue trials on a case-by-case basis. In re Brauer, 890 N.E.2d 847,
861 (Mass. 2008). Indeed, no SJC order requires trial courts to conduct a jury trial where there is
a significant risk of COVID-19 transmission. The Court should exercise its discretion to continue
this trial because of the recent COVID-19 outbreak in Barnstable County, and the fact that the jury
trial is scheduled to start the day after Labor Day, when COVID-19 rates may spike.
-4-
Dated: August 16, 2021 Respectfully submitted,
R.J. REYNOLDS TOBACCO COMPANY,
GARBER BROS., INC.,
CUMBERLAND FARMS, INC.
By their attorneys,
/s/ Christopher M. Morrison
Christopher M. Morrison, BBO# 651335
Kate Wallace, BBO# 665503
JONES DAY
100 High Street, 21st Floor
Boston, MA 02110.1781
Telephone: +1.617.960.3939
Facsimile: +1.617.449.6999
cmorrison@jonesday.com
kwallace@jonesday.com
CERTIFICATE OF SERVICE
I, Christopher M. Morrison, hereby certify that on August 16, 2021, a true and accurate
copy of the foregoing to be served upon the counsel of record for all parties by email.
/s/ Christopher M. Morrison
Christopher M. Morrison
-5-
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT MARY FULLER, Individually and as Per- sonal Representative of the Estate of JOHN FULLER, Plaintiff, v. Case No. 1672-CV-00154 R. J. REYNOLDS TOBACCO COMPANY, GARBER BROS., INC., and CUMBER- LAND FARMS, INC., Defendants. DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO RESET TRIAL DATE DUE TO THE COVID-19 PANDEMIC Plaintiff Mary Fuller urges this Court to push forward with a multi-week civil jury trial despite a recent outbreak of COVID-19 in Barnstable County that was so severe it prompted the CDC to change its nationwide guidance. She claims that the COVID-19 rates have “dropped markedly.” Opp. ¶ 6. But the data tells a different story. The current daily average of new COVID-19 cases in Barnstable County is 28—which is 21.7% higher than the daily average for the original May 4, 2020, trial date (23), which this Court continued due to COVID-19. See Track- ing Coronavirus in Barnstable County, Mass., N.Y. Times, available at https://ti- nyurl.com/3ttmer98 (last visited Aug. 14, 2021). The number of hospitalized COVID-19 patients in Barnstable County has also increased by 27% in the last 14 days. Id. The situation is no better statewide: In Massachusetts, coronavirus-related hospitalizations are up 60% in the last 14 days (for a daily average of 307 hospitalizations). See Tracking Coronavirus in Massachusetts, N.Y. Times, available at https://tinyurl.com/4me4w987 (last visited Aug. 14, 2021). The current daily average of new COVID-19 cases in Massachusetts is 1,156—a 76% increase in the last 14 days. Id. Ms. Fuller acknowledges (as she must) that the recent COVID-19 outbreak in Barnstable County occurred over the Fourth of July weekend. Brianna Abbott, CDC Says New Mask Guide- lines Informed by Cape Cod Outbreak, WSJ, July 30, 2021, available at https://ti- nyurl.com/47dvhmkc (last visited Aug. 14, 2021). Jury selection in this case is scheduled to begin the morning after Labor Day, another summer holiday where “extremely large gatherings, both outdoors and indoors” are expected. Opp. ¶ 6. While some parts of Barnstable County are under an indoor mask mandate, id., that does not prevent the transmission of the highly contagious Delta variant in gatherings in private homes or at large outdoor events—all of which are believed to have contributed to the July Fourth resurgence. See Catherine M. Brown, DVM et al., Outbreak of SARS-CoV-2 Infections, Including COVID-19 Vaccine Breakthrough Infections, Associated with Large Public Gatherings — Barnstable County, Massachusetts, July 2021, CDC, July 30, 2021 (“CDC Barnstable County Report”), available at https://tinyurl.com/8vrp4ne8 (last visited Aug. 14, 2021). Summoning 50 to 60 jurors for voir dire the morning after a three-day stint of house parties and large gatherings where COVID-19 is likely to run rampant—even among the fully vaccinated—presents a serious public-health risk. Ms. Fuller accuses Defendants of last minute attempts to push the trial date. But Defend- ants promptly moved for a continuance just four days after the CDC cited the Barnstable County outbreak as the basis for its revised guidance. See CDC Barnstable County Report. Defendants thought it particularly important to bring this issue to the Court’s attention given that the CDC -2- guidance came four days after the Court had, at a July 23 status conference, revised the trial sched- ule to provide for jury selection to start the day after Labor Day, when COVID-19 rates can be expected to again spike. Ms. Fuller’s dismissal of this rapidly evolving public-health crisis as a pretext for delaying trial could not be further from the truth. There is no way Defendants could have predicted this recent outbreak of the Delta variant, the full effects of which came to light only after the July 23 status conference. Indeed, after the status conference, the nation’s foremost public-health experts expressed shock over the Barnstable County outbreak. See Anne Flaherty & Arielle Mitropoulos, CDC mask decision followed stunning findings from Cape Cod beach outbreak, ABC News, July 29, 2021, available at https://tinyurl.com/36nsk5nx (last visited Aug. 14, 2021). The Barnstable County outbreak led the CDC to declare that the “war has changed.” ‘The war has changed,’ CDC says, calling for new response to Delta variant, Reuters, July 30, 2021, available at https://ti- nyurl.com/35fa297k (last visited Aug. 14, 2021). Barnstable County’s acting epidemiologist and deputy director of human services, Vaira Harik, called the outbreak “far in excess” of what experts anticipated. Is Provincetown —Cape Cod’s COVID-19 Cluster Among Vaccinated Folks —A Vac- cine Success Or Failure? WBUR, July 23, 2021, available at https://tinyurl.com/52xwjdm4 (last visited Aug. 14, 2021). Perhaps most stunning is the variant’s rapid spread among the fully vac- cinated, leading the CDC to warn that the variant is more transmittable than the chickenpox. Paul LeBlanc et al., CDC document warns Delta variant appears to spread as easily as chickenpox and cause more severe infection, CNN, July 30, 2021, available at https://tinyurl.com/3bxfvtwp (last visited Aug. 14, 2021). Finally, Ms. Fuller points out that the Court is currently conducting a jury trial in a murder case. Opp. ¶ 8. But that is only another reason to continue this trial: So the Court can dedicate -3- its limited resources to clearing the backlog of criminal cases, which involve constitutional and statutory timing concerns that simply are not present in civil cases. Indeed, the Supreme Judicial Court encouraged trial courts to prioritize trials in criminal cases as coronavirus restrictions eased. See Fifth Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic ¶ 9, Feb. 24, 2021, available at https://ti- nyurl.com/2x7yssdj (last visited Aug. 2, 2021). Although the Supreme Judicial Court has lifted the moratorium on jury trials, this Court retains its vast discretion to continue trials on a case-by-case basis. In re Brauer, 890 N.E.2d 847, 861 (Mass. 2008). Indeed, no SJC order requires trial courts to conduct a jury trial where there is a significant risk of COVID-19 transmission. The Court should exercise its discretion to continue this trial because of the recent COVID-19 outbreak in Barnstable County, and the fact that the jury trial is scheduled to start the day after Labor Day, when COVID-19 rates may spike. -4- Dated: August 16, 2021 Respectfully submitted, R.J. REYNOLDS TOBACCO COMPANY, GARBER BROS., INC., CUMBERLAND FARMS, INC. By their attorneys, /s/ Christopher M. Morrison Christopher M. Morrison, BBO# 651335 Kate Wallace, BBO# 665503 JONES DAY 100 High Street, 21st Floor Boston, MA 02110.1781 Telephone: +1.617.960.3939 Facsimile: +1.617.449.6999 cmorrison@jonesday.com kwallace@jonesday.com CERTIFICATE OF SERVICE I, Christopher M. Morrison, hereby certify that on August 16, 2021, a true and accurate copy of the foregoing to be served upon the counsel of record for all parties by email. /s/ Christopher M. Morrison Christopher M. Morrison -5-