By Joyce Hanson

Law360 (August 31, 2020, 7:53 PM EDT) -- Princess Cruises is looking to escape a proposed class action over a COVID-19 outbreak on a voyage that left at least two dead and guests trapped in their cabins, telling a California federal court that the passenger suing can't show her symptoms were related to the coronavirus.

The motion to dismiss lead plaintiff Kathleen O'Neill's suit, which Princess Cruise Lines Ltd. and its parent company Carnival Corp. filed Friday, asserts that she fails to state a claim because she hasn't alleged "concrete, harmful symptoms" of the virus and can't establish intentional infliction of emotional distress. Further, the cruise lines argue, the class claims are barred under the class action waiver.

Citing a U.S. Supreme Court decision in Metro-North Commuter Railroad Co. v. Buckley in 1997, Miami-based Princess and California-based Carnival argue that plaintiffs can't recover damages from disease exposure unless they experience serious symptoms.

They also point to a 2003 high court decision in Norfolk & Western Railway Co. v. Ayers , saying recovery for emotional distress is allowed only when the physical injury is chronic, painful and concrete.

"Plaintiff fails to state a claim because she does not allege that she suffered concrete, harmful symptoms," Princess and Carnival said. "Plaintiff allegedly suffered only minimal and common symptoms of COVID-19 — fever, sore throat and a cough — which required nothing more than Tylenol and rest. Under established principles of tort law, including Supreme Court precedent involving disease-based negligence claims, she must allege more than this de minimis harm in order to state a claim for relief."

North Carolina resident O'Neill hit Princess and Carnival with her proposed class action July 13 after the coronavirus outbreak on a March cruise left at least two dead and passengers trapped in their cabins for days.

Her 42-page complaint says she tested positive for COVID-19 just after returning home from the cruise. She accuses Carnival and Princess of negligence and inflicting emotional distress on passengers for allowing the Coral Princess vessel to set sail from Chile on March 5, after outbreaks of the disease on two sister ships in the early days of the global pandemic.

In addition to recounting her and her husband's nightmarish voyage aboard the Coral Princess, O'Neill's complaint also details outbreaks on the two other Princess Cruise ships — the Diamond Princess and the Grand Princess — that predated their trip.

The Diamond Princess experienced one of the first COVID-19 outbreaks on a cruise ship in early February after setting sail from Asia. More than 700 passengers contracted the virus and 14 died, according to the complaint.

At least one passenger came down with COVID-19 symptoms, which later led to his death, during a Feb. 11 roundtrip cruise from San Francisco to Mexico on the Grand Princess, yet Carnival and Princess sent the ship off on its next scheduled trip to Hawaii without taking extra precautions and with some of the passengers from the Mexico trip still on board, O'Neill's complaint says. A reported outbreak prompted California to temporarily deny the Grand Princess entry upon its return, and ultimately, more than 130 people on board tested positive and at least five passengers and one crew member died, according to O'Neill's complaint.

In total, Carnival's ships have recorded more than 1,500 positive infections and at least 39 deaths from COVID-19, according to O'Neill's complaint.

In the case of the Coral Princess, the ship was allowed to leave Valparaiso, Chile, on March 5, despite the recent outbreaks, O'Neill says. She alleges that she visited the ship's doctor March 26 for shoulder pain, unaware at the time that several passengers were already ill. It was not until March 31 that the captain announced that passengers were being asked to return to their cabins, informing them that "an unusually high number of people" were experiencing flu-like symptoms.

"It was then, after everyone had been socializing and making purchases for about 26 days in an environment known to be susceptible to contagion, that the passengers were advised to take these precautions," O'Neill alleges.

The passengers remained confined to their cabins thereafter. Five days later, an announcement said more people had reported to the sick bay and that two passengers had died, according to the complaint.

After finally disembarking April 6, the O'Neills took a chartered flight home to North Carolina and began a 14-day home quarantine. O'Neill tested positive for COVID-19 after an April 9 test. Her husband did not, the complaint says.

O'Neill says she isolated herself at home, suffering from a dry cough, 102-degree fever, chills, sore throat and more, while staying away from her husband, who was awaiting neurosurgery.

O'Neill is seeking to represent a class consisting of all passengers on the March 5 voyage of the Coral Princess, excluding Carnival employees. More than 1,500 passengers departed on the cruise, according to the complaint.

A lawyer for O'Neill, Gretchen Freeman Cappio of Keller Rohrback LLP, told Law360 on Monday in an email that the cruise lines' motion to dismiss "perfectly encapsulates their attitude of callous disregard" toward passenger safety.

"Not only do defendants show total indifference for the safety of their passengers, they seek to evade responsibility, contending that passengers must sacrifice their legal rights while being injured aboard their vessels," Cappio said.

Representatives for Carnival and Princess did not immediately respond to requests for comment Monday.

O'Neill is represented by Alison E. Chase and Gretchen Freeman Cappio of Keller Rohrback LLP.

Carnival is represented by Jonathan W. Hughes of Arnold & Porter.

Princess is represented by Jeffrey B. Maltzman of Maltzman & Partners PA.

The case is O'Neill v. Carnival Corp. et al., case number 2:20-cv-06218, in the U.S. District Court for the Central District of California.

--Additional reporting by Nathan Hale. Editing by Kelly Duncan.

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