As we were drafting this blog post, each of us was sitting in our home offices self-quarantined from the outside world doing our part to flatten-the-curve and keep COVID-19 germs at bay. The news about the coronavirus is changing by the second and along with it closings and edicts the likes of which most of us have not seen in our lifetime. Focusing on the future of class actions stemming from this global pandemic doesn’t seem very neighborly in the moment, but our society is generally a litigious one and so it is at least worth a quick look.
The first coronavirus–related lawsuit was filed on March 9, 2020 against Princess Cruises. The complaint asserts claims of negligence and gross negligence against the cruise ship company for allegedly failing to adequately warn or protect its passengers from the COVID-19 virus. The complaint specifically alleges that although Princess Cruises was aware of the threat COVID-19 posed to its passengers, it failed to take reasonable precautions to protect them from potential infection. This particular complaint was only brought on behalf of two passengers and did not contain claims on behalf of a class. But what if it did? According to the complaint itself, this particular cruise ship had over three thousand passengers on board. Would a class action be a viable option to handle COVID-19 outbreak cases where class members allege personal injury?
In general, both state and federal courts across the country have been loath to certify classes alleging personal injury. Under the Federal Rules, and the vast majority of state rules, should outbreak plaintiffs seek class certification, they must affirmatively demonstrate that they can meet the Numerosity, Commonality, Typicality, and Adequacy prerequisites. See Fed. R. Civ. P. 23(a)(1-4). Assuming arguendo that these could be satisfied by a putative class asserting damages from a COVID-19 outbreak, could a putative COVID-19 class action establish one or more grounds for certification?
Generally speaking, Rule 23(b) identifies three types of class actions that may be certified: (1) Risk of inconsistent or dispositive adjudications, (2) Declaratory or Injunctive Relief, and (3) Predominance and Superiority (Damages class). See Fed. R. Civ. P. 23(b). Rule 23(b)(3) or “damages classes” are the most commonly asserted category of class actions and the one most likely to be asserted in the context of a COVID-19 outbreak class action. Under Rule 23(b)(3), a class action may be certified if all Rule 23(a) requirements are met and where the questions of law or fact common to the class “predominate” over questions affecting the individual members and, on balance, a class action is superior to other methods available for adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3).
Potential class plaintiffs will likely argue that questions of law and fact arising out of a COVID-19 outbreak litigation would predominate over those affecting the individual members. In terms of the Princess Cruise lawsuit, a non-exhaustive list of such “common” questions would likely include:
- When did the COVID-19 virus first arrive on the ship?
- When did Princess Cruises become aware of the risk of COVID-19 on its ship?
- Did Princess Cruises fail to warn its customers of the risk of COVID-19?
- What precautions did Princess Cruises put in place to prevent a COVID-19 outbreak on its ships?
- Were those precautions reasonable?
- Did Princess Cruises’ alleged negligence lead to an actual risk of exposure to COVID-19 to its passengers?
However, as is the case with the vast majority of class actions involving personal injury, there are numerous individual factual and legal questions likely to drive resolution of the litigation and weigh against certification. For example, in our hypothetical:
- When did each customer become aware of COVID-19?
- Were customers warned of the risks of COVID-19 associated with their travel before boarding?
- Were communications uniform while on-board?
- Are customers on the ship disparately situated? e.g., some have injuries, some do not, while some have more severe injuries than others.
- Significantly to causation, when were customers infected with the virus—i.e., were they infected while they were on the ship or did they contract the virus prior to their cruise?
- What are the damages for each class member? For example, class members who were actually infected with COVID-19 will have different damages than those class members who were not infected.
- What emotional distress did each class member suffer?
Each of these questions require extensive amounts of individualized evidence particular to each class member, which would ultimately necessitate countless “mini-trials” to resolve. In similar situations, courts have typically limited certification to liability or denied class certification altogether. For example, in Lankford v. Carnival Corp., No. 12-24408-CIV, 2014 WL 11878384, at *1 (S.D. Fla. July 25, 2014) a putative class alleged infections and other injuries caused by Carnival’s failure to properly clean and disinfect the hot tubs on its cruise ships. In denying class certification, the court reasoned that “proximate cause determinations would predominate over the determination of the common issue of Carnival’s conduct, due to the numerous sources from which an individual may contract an illness or infection and the need to determine what portion of a plaintiff’s injury was fairly traceable to Carnival’s conduct.” Id. at 10 ( See also In re Conagra Peanut Butter Prod. Liab. Litig., 251 F.R.D. 689, 691 (N.D. Ga. 2008) (denying class certification for a putative class alleging injuries resulting from consumption of recalled peanut butter); but see Petersen v. Costco Wholesale Co., 312 F.R.D. 565, 570 (C.D. Cal. 2016)(granting class certification for class members alleging injury as a result of the risk of exposure to hepatitis A virus for the purposes of determining liability only and bifurcating damages to be heard on individual basis.).
Because potential class actions derived from an outbreak of the COVID-19 virus will likely be predominated by individual causation issues, little time or effort will be saved in dealing with them together and it is likely that the vast majority of courts will deem a class action for damages inappropriate. See Adv. Comm. Note 39 F.R.D. 102(1966). This is particularly true given the fact that many people remain untested, symptoms from COVID-19 are far from uniform and transmission is possible between asymptomatic patients. But businesses should be prepared for class actions that do not allege personal injury, and instead allege that customers overpaid for goods or services that would have been worth less if COVID-19 risks had not been concealed.
Over the coming months, the COVID-19 situation will continue to evolve and we will continue to monitor the landscape. Once the dust settles, it will be particularly interesting to see whether individuals attempt to hold companies and entities responsible for their COVID-19 injuries (including alleged overpayments for goods and services), and if so, if they will attempt to do so using the class action vehicle. Class members alleging personal injuries likely face an uphill battle given the current state of class action law. However, these unprecedented times could potentially result in legal rulings that are themselves unprecedented.
For questions or additional guidance on these recommendations and other COVID-19 considerations, please contact any of the McGuireWoods COVID-19 Response Team members.