By Rachel O'Brien

Law360 (September 8, 2020, 3:45 PM EDT ) Passengers who filed a proposed class action against Princess Cruise Lines for its handling of COVID-19 cases aboard one of its ships don't have enough injuries in common to be a class, the company has told a California federal judge.

"Virtually every aspect of plaintiffs' claims — including injury, causation and damages — turns on individualized factors that defy adjudication on a common basis and forecloses a finding of predominance," the company said Friday. "Plaintiffs' claimed injuries vary widely."

The April suit alleges that Princess Cruise Lines and its owner, Carnival Corp., allowed more than 2,400 passengers to board the Grand Princess ship in February but did not tell them that at least two passengers from the previous trip had coronavirus symptoms. The cruise ship didn't impose medical screenings for disembarking or embarking passengers and made no effort to sanitize or disinfect the ship before new passengers arrived, the plaintiffs allege.

Among the 2,400 passengers sailing on the Grand Princess, which left San Francisco for Hawaii on Feb. 21, were several dozen people who had traveled on the Grand Princess's previous trip to Mexico and remained on board for the Hawaii trip, some of whom had been potentially exposed to COVID-19, according to the complaint.

On March 4, Princess told the passengers they were potentially exposed to COVID-19 and that the ship would return to San Francisco instead of continuing to other scheduled destinations. The following day, passengers were advised to remain isolated in their cabins, the complaint says.

The plaintiffs say "11 passengers and 10 crew members who were experiencing symptoms" were among those on the ship.

When the ship's passengers disembarked in California on March 9, state and federal government agencies transported them to military bases in three states to quarantine before being allowed to return to their homes, according to the lawsuit.

On Aug. 31, the plaintiffs asked the judge to certify them as a class because of the "common experience" of being "trapped onboard the same cruise ship served by the same crew members, and who, over the same series of days during the same cruise itinerary, uniformly experienced the same misconduct by defendants," according to their motion.

In its joint opposition, Princess and Carnival argue the injuries of the 62 plaintiffs vary widely, with "the vast majority" not alleging they contracted COVID-19.

Citing the passengers' second amended complaint, the defendants point out that only three plaintiffs said they had tested positive for COVID-19 and suffered more than de minimis symptoms. Another seven say they tested positive for the virus but developed only de minimis symptoms, while 21 suffered symptoms "associated with" COVID-19 but don't allege they actually contracted the disease, the cruise line said.

"Most plaintiffs make no allegations of any symptoms or infection and concede that they — like most potential class members — would seek only to recover on the discredited theory that they suffered emotional distress from fear of exposure to COVID-19," the cruise line said.

The same judge hearing this suit, U.S. District Judge R. Gary Klausner, in July tossed out two suits filed in March by other Princess passengers, saying they can't recover damages for negligent infliction of emotional distress caused by fear of contracting the virus.

For those plaintiffs who did contract the coronavirus, they would have to prove they contracted it on the ship, not before boarding or while on their way to or during government-maintained quarantine, the cruise line argued.

"Plaintiffs' motion does not grapple with any of these issues — it is a case study in why federal courts almost uniformly refuse to certify personal-injury class actions," the filing said.

Individualized mini-trials would be required to determine whether each class member suffered any injury and whether the cruise line caused it, the defendants argued.

But that doesn't matter, the cruise line said, because before boarding, all passengers agreed to terms that waived their rights to be part of a class action to resolve any disputes.

The other passenger suits that were filed in March and tossed in July had similarly alleged Princess knew but didn't warn new passengers that those disembarking from the Grand Princess's previous voyage had COVID-19.

A July lawsuit alleged negligence for a coronavirus outbreak that occurred on its Coral Princess ship that set sail from Chile on March 5, leaving at least two dead and passengers trapped in their cabins for days.

"This is precisely the type of litigation where using the class action procedure makes good sense," Mark P. Chalos of Lieff Cabraser Heimann & Bernstein LLP, one of the plaintiffs' attorneys, told Law360 on Tuesday. "As we outlined in our brief, the Federal Rules require the parties to conduct the litigation in a just, speedy, and inexpensive manner. Resolving the key common legal and factual issues once in a class action, rather than potentially hundreds of times in individual lawsuits, is consistent with the Federal Rules and is the most sensible way to resolve this litigation."

Counsel for the cruise line didn't immediately respond to requests for comment Tuesday.

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

Princess 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, Angel Tang Nakamura, Andrew Johnson and David J. Weiner of Arnold & Porter.

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

-Additional reporting by Y. Peter Kang and Lauren Berg. Editing by Orlando Lorenzo.

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