Princess Cruise Passengers Fight Bid To Ditch COVID-19 Suit

By Rachel O'Brien
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Law360 (October 27, 2020, 5:03 PM EDT) -- A proposed class of Princess Cruise Lines passengers have urged a California federal judge to reject parent company Carnival's bid to dismiss their allegations that the cruise companies allowed passengers aboard a ship while knowing people on a previous voyage had COVID-19 symptoms.

Passengers who claim to have contracted the coronavirus say they either tested positive soon after disembarking from the Grand Princess ship in early March or that they met the Centers for Disease Control and Prevention's definition of a "probable case" while still aboard the Grand Princess or soon after disembarking, according to their filing on Monday.

"These allegations are sufficient to 'allow the court to draw the reasonable inference' that defendants' negligence caused the alleged harm," the passengers said.

In the April suit, the proposed class of passengers alleges that Princess and its owner, Carnival Corp., allowed more than 2,400 passengers to board the Grand Princess ship in late February while hiding that at least two passengers from the previous trip had COVID-19 symptoms.

The ship's staff didn't impose medical screenings for passengers and didn't sanitize or disinfect the ship before new passengers arrived, the plaintiffs allege.

When the Grand Princess left San Francisco for Hawaii on Feb. 21, there were several dozen people who had traveled on the ship's previous trip to Mexico and remained on board for the Hawaii trip, some of whom had been potentially exposed to the coronavirus, according to the complaint.

While aboard, Princess told passengers they were potentially exposed to the virus and that the ship would return to San Francisco instead of continuing to other destinations.

The next day, passengers were told to remain isolated in their cabins, as there were "11 passengers and 10 crew members who were experiencing symptoms" the plaintiffs say.

On Oct. 20, U.S. District Judge R. Gary Klausner denied the proposed class's request for certification, because the passengers had agreed to waive their right to file class actions when they bought tickets and agreed to travel on the ship.

Princess and Carnival had argued that the class's claims were too varied to be certified, as the vast majority of the class had not alleged that they contracted the virus on the ship.

In September, Judge Klausner slashed the passengers' claims, tossing allegations of negligence, saying the plaintiffs didn't establish when they started experiencing symptoms or when they tested positive for COVID-19 or virus antibodies.

He let stand a claim for intentionally inflicting emotional distress and ruled the passengers didn't plausibly claim that Carnival is the alter ego of Princess Cruises, ending their negligence claims against Carnival.

The passengers filed an amended complaint in early October. On Oct. 16, Carnival filed a motion to dismiss, arguing that Carnival and Princess are not one and the same.

In supporting their argument that Carnival is an alter ego of Princess and should remain a defendant in the suit, passengers argued on Monday that "Carnival stepped into Princess's shoes in a federal criminal case" over a criminal penalty for vessel pollution, with Carnival's CEO taking personal responsibility for the two companies failing to implement an Environmental Compliance Plan.

"This is hardly the behavior of a remote parent company toward its subsidiary. Instead, it supports plaintiffs' allegations that Carnival totally dominated the operational conduct of Princess," the passengers argued.

The two companies share the same board of directors and almost all of the same executive officers, they commingle assets and Carnival sets the pay for Princess' executives, the plaintiffs said.

In its motion to dismiss, Carnival and Princess argue that the passengers can't adequately allege the cruise line exposed them to COVID-19 if they haven't tested positive for the coronavirus.

This argument is flawed, plaintiffs claim, because COVID-19 diagnostic tests weren't readily available in early March when the ship docked after passengers were alleged to have contracted the virus.

"Many passengers likely contracted the virus without receiving a positive test. Recognizing this reality, the CDC established a set of clinical, epidemiological and laboratory criteria for identifying 'probable cases' of COVID-19," the passengers argued.

The question of whether a specific plaintiff contracted the virus while onboard the Grand Princess requires expert medical testimony and should be decided by a jury, the plaintiffs argued.

"At the pleadings stage, all that is required is that plaintiffs plausibly allege that they were injured as a direct and proximate result of defendants' negligence. They have done so," they said.

The passengers described the disembarking scene as one that supports their argument that they were put in harm's way.

On the ship's return from Hawaii, California prohibited the ship from docking in San Francisco, sending the ship back to sea for five days before it was escorted by the U.S. Coast Guard and docked in Oakland, where it was met with ambulances and medical personnel in biohazard suits, the passengers said.

Passengers disembarking the following day, after a screening for COVID-19 symptoms, were escorted to military bases for quarantine.

"One need not look beyond this response by federal and state authorities to conclude that the entire Grand Princess was plausibly a zone of danger and all passengers were at immediate risk of contracting COVID-19," they said.

The passengers said they suffered emotional distress over being put at risk for contracting the virus.

Counsel for the parties didn't immediately respond to requests for comment.

The passengers are represented by Gretchen M. Nelson and Carlos F. Llinás Negret of Nelson & Fraenkel LLP, Mary E. Alexander and Brendan D.S. Way of Mary Alexander & Associates PC, Elizabeth J. Cabraser, Mark P. Chalos and Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein LLP and Joseph G. Sauder of Sauder Schelkopf LLC.

Princess Cruises is represented by Jeffrey B. Maltzman, Rafaela P. Castells, Edgar R. Nield and Gabrielle De Santis Nield of Maltzman & Partners PA.

Carnival is represented by Jonathan W. Hughes and David J. Weiner of Arnold & Porter.

The case is Archer et al. v. Carnival Corp. and PLC et al., case number 2:20-cv-04203, in the U.S. District Court for the Central District of California.

--Additional reporting by Sarah Jarvis, Y. Peter Kang and Joyce Hanson. Editing by Nicole Bleier.

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