Cruise plaintiffs try class action in virus litigation

A cruise line is opposing class certification of 2,400 passengers claiming to have been infected with COVID-19 aboard the Grand Princess, which docked at the port of San Francisco in March after a voyage to Hawaii was cut short.

Thousands of passengers have sued Princess Cruise Lines and its parent, Carnival Cruises, over the last several months in federal court, claiming misconduct and negligence in stopping the spread of the virus on all three of its ships: the Ruby, the Grand and the Diamond.

Plaintiffs' lawyers Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein LLP and Mary Alexander of Mary Alexander and Associates PC also filed complaints against the cruise line on behalf of several passengers who said they were infected. The pair, along with Gretchen Nelson of Nelson & Fraenkel LLP now seek class certification, appointment of class representatives and class counsel. Robert Archer et al v. Carnival Corp., Princess Cruise Lines LTD, 3:20CV02381 (C.D. Cal., filed April 8, 2020).

The proposed class action accuses Princess of exposing passengers on the Grand Princess while withholding critical information, including details of outbreaks during preceding voyages of the ship and other vessels.

In their motion filed last month, passengers said they were trapped on the same cruise ship, served by the same crew over the same time period during the same trip and uniformly experienced the same misconduct by Princess. Their motion argues common issues predominate because the U.S. Supreme Court has held that mass torts arising from common cause and disaster can satisfy the predominance requirement. It would be inefficient and redundant to litigate each lawsuit individually, even if the relevant facts about Princess' behavior are identical, the plaintiffs' lawyers argued.

Judge R. Gary Klausner of the Central District of California previously ruled in multiple cases that passengers can't seek damages if they only allege they suffered from fear of being exposed to the virus, Princess's counsel, Jonathan W. Hughes of Porter Kaye Scholer LLP argued in his opposition brief filed Wednesday. The plaintiffs' motion for class certification "is a case study in why federal courts almost uniformly refuse to certify personal injury class actions," Hughes argued.

"Nor are there common questions around causation. Because COVID-19 has an incubation period of up to 14 days and was present in California by mid-January 2020, plaintiffs may have been exposed to or contracted COVID-19 before boarding," Hughes wrote. "Alternatively, some may have been infected after disembarking but ashore in a port of call or while en route to or during the quarantine at any one of the multiple locations passengers were sent by government authorities."

In essence, in the event passengers were infected while on board, individual causation questions remain, Hughes argued, which means the judge must individually gauge how each person got infected to determine whether Princess' actions caused it.

The proposed class representatives in Archer establish they didn't suffer the same injury. Only three said they tested positive and suffered more than minor symptoms, Hughes pointed out. The remaining plaintiffs' claims cover a wide range of alleged injuries. Seven said they tested positive but their alleged symptoms were minor, such as cough, fever and fatigue, he wrote. The remaining 31 passengers didn't suffer any symptoms and allege only fear.

"These differences make it impossible for plaintiffs to prove commonality or typicality," Hughes argued. "Plaintiffs' proposed class moreover would encompass everything from guests who suffered no effects whatsoever from COVID-19 to those that died from the illness."

Princess had passengers sign a uniform passage contract that waived class actions, which Alexander argued was unconscionable, contrary to public policy and unenforceable. Alexander said that contract wasn't available for passengers to review before buying tickets, nor did they know about the contract, including its class waiver provision.

Klausner and other judges so far dismissed more than a dozen complaints filed by other passengers in separate actions after they said they were infected with the virus, or sued for fear of being infected. It's a ruling trend that has indicated simply coming down with the virus might be insufficient to proceed with litigation, or because passengers didn't sufficiently allege there is a causal link between infection and Princess' alleged misconduct, or because some were asymptomatic.

Judge Dale S. Fischer of the Central District also sided with Princess' dismissal arguments in another case last month, finding that passengers failed to allege the amount of time between alleged exposure, and the date they began experiencing symptoms or tested positive -- a key fact necessary to render the causation allegations plausible, not merely possible, Fischer found. Michael Fish et al v. Princess Cruise Lines, 2:20CV03894 (C.D. Cal. filed April 29, 2020).

The Archer group's claims fail given Klausner's initial decision in a Florida couple's case, where Eva and Ron Weissberger failed to show they were in the danger zone or showed physical symptoms of their fear of being infected, Hughes wrote. Weissberger v. Princess Cruise Lines LTD, 2:20CV00267 (C.D. Cal., filed Mar. 9, 2020).

Alexander argued class certification should be granted to eliminate redundancy. In the same way colleges are being sued by students fighting to get back their tuition and campus service fees after resorting to virtual learning, "I think they, too, should be granted class certification because there are so many people involved," Alexander said.

"There are tens of thousands of students at these universities, who are all similarly situated in the way they aren't being taught in class and only through online," Alexander said. "The passengers signed the same contract, had to pay the same amount of money, so certification is a great way to handle these large numbers of cases."

John R. Hillsman, personal injury and maritime expert and partner at the Law Offices of McGuinn Hillsman & Palefsky, who is not involved in any Princess cases, said the crux of the issue comes down to whether common questions will predominate. Given Klausner's track record of dismissals and his reasons, Hillsman said it is unlikely the judge will grant certification.

"Both sides did a great job in their papers, but there's an uphill battle for plaintiffs," Hillsman said. "At the end of the day, this is a personal injury lawsuit. That means the remedies the passengers ask for vary with each and every case."

Unlike the college tuition fees litigation where students simply seek refunds, Princess passengers ask for individual damage awards that can vary widely, he noted.

But there are other strategies for passengers to pursue, according to Hillsman. The collateral estoppel doctrine says issues that have already been determined don't need to be relitigated, he said. Collateral estoppel on liability questions will make it easier for courts to try these cases one at a time because the liability issue will be determined the first time a trial commences in this case, he said.

The time, date and location of the causation behind each infection will militate the class action, and the causation questions in each of the 2,400 passengers will also vary, HIllsman said.

"Princess has already argued those things aren't common questions. The passengers can't even demonstrate clearly yet if they got infected on the ship or not," he pointed out. "This is going to be an interesting call."