The start of the first civil trial stemming from the 2021 Astroworld festival, at which 10 people were killed in a crowd surge, has been delayed.
Jury selection had been set to begin next Tuesday in the wrongful-death lawsuit filed the family of Madison Dubiski, a 23-year-old Houston resident who was killed during the crowd crush at the Nov. 5, 2021, concert by rap superstar Travis Scott.
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But Apple Inc., one of the more than 20 defendants going to trial next week, filed an appeal this week, automatically delaying the start of jury selection.
"Unless I hear differently, the trial is stayed," state District Judge Kristen Hawkins said during a court hearing Thursday.
Apple, which livestreamed Scott’s concert, is appealing a ruling by Hawkins that denied the company’s motion to be dismissed from the case. Apple has argued that under Texas law, it can appeal Hawkins’ ruling because its defense claims are being made in part as a member of the electronic media.
Apple is arguing that in livestreaming Scott’s concert, it was acting as a member of the electronic media and its actions merit free speech protection.
"It remains our position that our conduct is protected by the First Amendment," Kent Rutter, one of Apple’s attorneys, told Hawkins during a court hearing Thursday.
Just before the hearing ended, Hawkins said she had been notified that the appeals court earlier Thursday had denied a request by the lawyers for Dubiski's family to lift the stay.
Jason Itkin, one of the attorneys for Dubiski’s family, said he planned to appeal that denial, likely up to the Texas Supreme Court.
Lawyers for Dubiski’s family have alleged that her death was caused by negligent planning and a lack of concern over capacity at the event. Her lawyers allege that how Apple placed its cameras around the concert site affected the placement of barriers and reduced available crowd space by the main stage.
Rutter argued that it was broadcasting an event "with significant public interest" and that by doing so, it was acting as a member of the media and gathering news.
Itkin said Apple has described itself in business records as a company that makes smartphones and computers but doesn’t mention news or news reporting. He added that the company’s Apple News app is a subscription service that aggregates the stories of other news organizations.
"This is not a free speech case. They know that," Itkin said.
During the hearing, Hawkins appeared skeptical about Apple’s claims about being a member of the electronic media, asking Rutter that if a livestream were set up in a zoo to watch animals, would that be news.
"Yes, it would be," Rutter said.
Over 4,000 plaintiffs filed hundreds of lawsuits following the concert. Dubiski’s case had been chosen by attorneys in the litigation to be the first to go to trial. More than 20 defendants, including Scott, Apple and Live Nation, the festival’s promoter, had been set to go on trial Tuesday.
Following a police investigation, a grand jury last year declined to indict Scott, along with five others connected to the festival.
