By Joyce Hanson

Law360 (March 4, 2021, 10:22 PM EST ) A Washington federal judge authorized a March 2022 trial date Thursday for a proposed class action against Holland America and parent company Carnival, which alleges the companies are liable for passengers' exposure to COVID-19 aboard a vessel that set sail a year ago.

U.S. District Judge Thomas S. Zilly approved a jury trial lasting two to four weeks, set to begin March 7, 2022. For the early stages of the trial proceedings, Judge Zilly set an April 12 due date for joinder of additional parties, amended pleadings and motions related to class certification.

The judge set the dates after reviewing a joint status report and discovery plan filed Monday by the lead plaintiffs, passengers Leonard C. Lindsay and Carl E.W. Zehner, and by Carnival Corp. and Holland America Line, which owns the MS Zaandam vessel at issue.

The report noted that the cruise companies are dealing with multiple lawsuits regarding the MS Zaandam and reserve the right to consolidate this suit with other actions "to avoid undue burden and expense." Carnival and Holland America also said business issues related to the pandemic may affect their ability to timely respond to the proposed class' discovery requests.

"Defendants ... note for the court, and have discussed with plaintiffs' counsel, that ongoing disruptions in defendants' business related to COVID-19 may delay production of certain documents or witnesses in the course of discovery," the report said. "Defendants therefore reserve the right to seek an appropriate protective order from the court depending on the scope and extent of discovery sought by plaintiffs."

Last month, Judge Zilly partly granted the cruise companies' bid to dismiss the suit, tossing claims for intentional infliction of emotional distress. The judge said he wasn't convinced by the passengers' argument that Carnival and Holland America's decision to sail was proof of outrageous conduct because the companies already knew the World Health Organization had declared COVID-19 a public health emergency.

"Accepting plaintiffs' allegations as true, they fail to rise to the level of extreme and outrageous conduct necessary to state an [intentional infliction of emotional distress] claim," Judge Zilly wrote. "The decision to set sail in the early weeks of what would become a global pandemic, when much remained unknown about COVID-19, does not constitute conduct beyond all possible bounds of decency."

Judge Zilly also dismissed Lindsay's claim for negligent infliction of emotional distress, saying he was persuaded by the cruise lines' argument that Lindsay did not allege any symptoms.

Under federal maritime law, plaintiffs who seek to recover damages for negligent infliction of emotional distress must satisfy a "zone of danger test," the judge said, citing the Ninth Circuit's 2010 ruling in Stacy v. Rederiet Otto Danielsen and the U.S. Supreme Court's 1994 decision in Consolidated Rail Corp. v. Gottshall . The zone of danger limits recovery for emotional injury to plaintiffs who sustain a physical impact or who are placed in immediate risk of physical harm due to a defendant's negligent conduct, the judge said.

Both the intentional and negligent emotional distress claims were dismissed without prejudice, giving Lindsay and Zehner an opportunity to file an amended complaint within two months of the judge's Feb. 10 ruling. The amended complaint has not yet been filed.

In their initial complaint filed in June, Lindsay and Zehner accuse Holland America and Carnival of exposing more than 1,000 cruise ship passengers to COVID-19 on the MS Zaandam, which set sail from Argentina in March.

The passengers were not subject to proper screening or other precautionary measures prior to boarding the ship, although Holland was aware that some crew and passengers were exhibiting COVID-19 symptoms, according to the suit. After Chile denied the ship port entry in mid-March, Holland allowed passengers to gather in large crowds and participate in group events designed to entertain them while stuck at sea, the suit says.

Due to the companies' alleged negligence, Zehner contracted the novel coronavirus and was later hospitalized and put on a ventilator, while Lindsay was forced to remain aboard the ship for a month, according to the suit. Four passengers died during the trip, and two of those were confirmed by Holland to have died due to COVID-19, the suit says.

The cruise companies in October asked the judge to toss the suit, saying there was a class action waiver in their cruise contract, to which Lindsay and Zehner had agreed. And in a November motion to dismiss an amended complaint, the companies asserted that Lindsay had not alleged he contracted COVID-19 or that he suffered any harmful symptoms of the disease.

A lawyer for the passengers, Kenneth S. Byrd of Lieff Cabraser Heimann & Bernstein LLP, told Law360 on Thursday that his clients are pleased the judge is moving forward with setting a trial date.

"We're eager to move forward with discovery in the case," Byrd said. "We look forward to bringing to light the practices and safety measures that should have been undertaken by the cruise industry."

Representatives for the cruise companies did not immediately respond to requests for comment Thursday.

The passengers are represented by Jason T. Dennett, Kim D. Stephens and Rebecca L. Solomon of Tousley Brain Stephens PLLC, and Elizabeth J. Cabraser, Jonathan D. Selbin, Mark P. Chalos, Kenneth S. Byrd and Christopher E. Coleman of Lieff Cabraser Heimann & Bernstein LLP.

Holland America and Carnival are represented by Nicholas S. Politis of Flynn Delich & Wise LLP, and Jonathan W. Hughes, David J. Weiner, Christopher M. Odell and Katie J.L. Scott of Arnold & Porter.

The case is Lindsay et al. v. Carnival Corp. et al., case number 2:20-cv-00982, in the U.S. District Court for the Western District of Washington.

--Additional reporting by Y. Peter Kang. Editing by Breda Lund.

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