Texas attorney Rusty Hardin filed a wrongful death suit last week against Princess Cruise kicking off what is anticipated to be a wave of wrongful death and personal injury lawsuits arising from COVID-19. Hardin represents Susan Dorety, the spouse of Michael Dorety, a Texas resident. According to the complaint filed in California, Princess Cruise failed to remove her husband from the ship after he exhibited signs of COVID-19, despite her repeated pleas. The couple was celebrating their 40th wedding anniversary on a Grand Princess Cruise out of San Francisco in late February and early March. The ship eventually docked in Oakland and quarantined guests to their rooms for six days. Michael Dorety died from COVID-19 and Susan Dorety became infected.
The complaint states that Susan Dorety repeatedly called for assistance from Princess Cruise’s emergency line. A doctor eventually came to their room, confirmed Michael Dorety had a fever and provided Tamiflu and Tylenol. The complaint indicates he was non-responsive at that point. Susan Dorety eventually convinced the cruise line to let them off the ship to seek medical attention. Dorety was taken to the hospital, tested positive for the virus and struggled to stay alive. The complaint alleges that “Susan Dorety and her children listened as the doctor counted down Michael Dorety’s heartbeats until he was gone. Michael Dorety died alone.”
The lawsuit asserts claims of negligence and gross negligence arising from both lack of care for Dorety and the decision to set sail knowing 62 passengers on the prior cruise had been exposed to coronavirus. Princess Cruise knew that at least two of its passengers from the ship’s prior voyage had coronavirus symptoms and some later died from the virus according to the complaint. Those passengers disembarked on February 21, the same day the Doretys boarded their cruise. Significantly, 62 passengers who had been exposed to coronavirus on the prior cruise remained on board for the February 21 cruise. Dorety’s counsel claims that no one should ever have boarded the ship and that as soon as they learned someone had died from the virus, they should have deboarded the ship. Several other passengers on the same cruise have filed suit.
Significantly, while most cruise lines require passengers to sign waivers containing mandatory arbitration agreements, those agreements typically exclude claims for bodily injury and wrongful death. Princess Cruise’s arbitration agreement includes the same exclusion such that personal injury and wrongful death claims are not be subject to mandatory arbitration.
In analyzing the viability of a negligence and gross negligence claim with respect to the decision to set sail, an in-depth analysis of the state of the country is necessary. The decision to set sail on the second leg of the cruise was made on February 21. At that time, coronavirus was just beginning to impact the United States. No closures had yet occurred and little details were known. Compare that with the United States State Department issuing a warning against travel by cruise on March 8 following receiving information from the CDC. Ironically, that warning was issued after 21 passengers on the Grand Princess tested positive for COVID-19.
Thus, it should be difficult to make that argument that Princess Cruise was grossly negligent in its decision to set sail on February 21 given the number of reported cases at that time. With the delay in onset of symptoms and lack of testing, it is unclear exactly how much Princess Cruise knew in terms of the number of passengers who actually had tested positive or had signs of coronavirus on the date it set sail. Plaintiffs will have the burden to prove that Princess Cruise had enough knowledge and information that they failed to act as a reasonable cruise line when they set sail to prove negligence. The standard for gross negligence is a higher burden, although the California standard for gross negligence is much lower standard than what is required in Texas. California requires “an extreme departure from what a reasonable person would do” which can be either an act or failing to act. Texas, on the other hand, would require a heightened burdened of almost rising to the level of intentional conduct.
Furthermore, in terms of comparative fault, an argument could be made that Michael and Susan Dorety had some knowledge of the outbreak and the potential risks involved in boarding the cruise. With widespread media reports about the outbreak in China and the presence of the virus in the United States, Mr. and Mrs. Dorety might have owed a duty to make informed decisions for themselves as well. However, based upon the allegations in the complaint, it appears that only Princess Cruise had knowledge of the infections on the prior voyage. Questions arise, such as whether the Doretys were informed that prior passengers had been infected with the virus and the extent of their knowledge about the growing global pandemic. At the time, it seemed that many Americans were understandably not yet taking the virus too seriously, given the quick containment of other recent global threats like SARS and avian flu.
It seems that the claim that Princess Cruise breached its duty to it passenger by failing to timely obtain and/or provide medical care for Michael Dorety will be an easier claim to prove rather than the ship should never have set sail in the first place. In terms of causation, however, it will be difficult to prove that Princess Cruise’s failure to timely intervene and obtain care was a cause in fact of Dorety’s death. Medical experts will likely support that Dorety’s death was inevitable and that additional or earlier care would have made no difference in the ultimate outcome. Thus, the causation piece will be easier with respect to the claim that the ship should never have set sail. Specifically, Plaintiff will show that Michael Dorety would never have contracted COVID-19 but for boarding the Grand Princess, causing his wrongful death.
Beyond this particular lawsuit, the assertion of these claims by a well-known Texas attorney is likely a harbinger of things to come. As of the writing of this article, the death toll from coronavirus in the United States is over 45,000 and climbing. Many more Americans have suffered extensive illness from the coronavirus that might cause permanent impairment. With the economic downturn and many Americans unemployed, it is anticipated that there will be an onslaught of these lawsuits claiming that a Plaintiff was negligently exposed to coronavirus due to negligent safety policies and practices.
The primary target Defendants for these suits will likely be employers of essential workers such as grocery stores, gas stations, pharmacies. Notably, a wrongful death suit was filed against Wal-Mart in Illinois in early April asserting that it did not do enough to protect employees from the coronavirus. However, it is envisioned that any premises owner, retailer or restaurant could be the target of a third-party claim related to lack of safety measures. For instance, a customer entering Wal-Mart or picking up food from a fast food restaurant could claim that he or she was exposed to the virus. Of course, with all of these cases, causation will be a severe obstacle to overcome. Nonetheless, personal injury attorneys have seen a litany of cases with hundreds or thousands of plaintiffs in class actions and toxic tort suits with extremely questionable causation links. It is unlikely that weak causation will prevent the filing of these claims.
In summary, the wrongful death suit filed in California against Princess Cruise by a lawyer with immediate name recognition certainly paves the way for other personal injury lawyers in pursuing these claims. It is anticipated that employers, retailers, premises owners and any business that has remained open during the pandemic will see an uptick in personal injury claims related to coronavirus.