The opinion
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Case 2:20-cv-11661-DDP-GJS Document 86 Filed 02/18/22 Page 1 of 10 Page ID #:7731
O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BHOPINDER DHILLON; REENA ) Case No. 2:20-CV-11661-GJS
DHILLON; ANITA PAMPALON; )
RICHARD PAMPALON; SANGITA ) ORDER RE: CROSS-MOTIONS FOR
LAL; RAJ LAL; JACK SEKHON; ) SUMMARY JUDGMENT
PRAVEENA GIANNOULIS, )
)
[Dkt. 64, 65]
Plaintiffs, )
)
v. )
)
PRINCESS CRUISE LINES, LTD, )
)
)
Presently before the court are cross mo tions for summary judgment, one filed by
D efendant Princess Cruise Lines, Ltd. (“Defen dant”), and the other filed by Plaintiffs
B hopinder Dhillon, Reena Dhillon, Anita Pam palon, Richard Pampalon, Sangita Lal, Raj
L a l , J a c k S e k h o n , a nd Praveena Giannoulis (c ollectively, “Plaintiffs”). (Dkt. 64, 65.)
Having considered the submissions of the parties, the court adopts the following Order.
///
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I. BACKGROUND
On February 11, 2020, Plaintiffs departed from San Francisco and set sail to Puerto
Vallarta aboard the Grand Princess, a cruise ship operated by Defendant (the “Mexico
Cruise”). Plaintiffs assert that during the Mexico Cruise, they began to exhibit symptoms
of COVID-19, and suffered severe injuries thereafter.
On December 28, 2020, Plaintiffs filed a lawsuit against Defendant, asserting two
causes of action for negligence and gross negligence. (Dkt. 1.)1
A. Discovery of COVID-19 and Early Public Health Guidance
On December 31, 2019, the World Health Organization (WHO) was informed of
cases of pneumonia of unknown etiology detected in Wuhan City, Hubei Province of
China. (Dkt. 64-46, Tarling Declaration (“Decl.”), Ex. 1.) On January 5, 2020, WHO
issued its first Disease Outbreak News report on COVID-19, detailing the number of
cases and their clinical status, China’s response measures, and WHO’s risk assessment
and advice. (Id.; see Dkt. 64-45, Tarling Decl. ¶ 8.) On January 9, 2020, WHO issued a
statement indicating that Chinese authorities had made a preliminary determination of a
novel coronavirus called SARS-CoV-2, in these pneumonia-like illnesses. (Dkt. 64-47,
Tarling Decl., Ex. 2.)
In mid-January 2020, WHO and Centers for Disease Control and Prevention
(“CDC”) developed guidance to detect and prevent the spread of COVID-19. On January
17, 2020, CDC issued Interim Guidance for Healthcare Professionals indicating the
1 The court acknowledges that Plaintiffs’ Statement of Uncontroverted Facts and
Conclusions of Law does not meet the strict requirements of Local Rule 56-1. (See Dkt.
65-2.) As Defendant points out in their Statement of Genuine Disputes, (Dkt. 72-1),
Plaintiffs primarily describe exhibits rather than state specific facts that Plaintiffs contend
are undisputed. (See Dkt. 65-2 ¶¶ 33-84.) Moreover, Plaintiffs cite to numerous exhibits
that do not support the underlying propositions for which they are cited. (See id. ¶¶ 11-
20.) Nevertheless, the court has done its best to determine facts truly in dispute based on
the parties’ briefing.
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clinical criteria for a patient under investigation (“PUI”) for COVID-19. (Dkt. 64-48,
Tarling Decl., Ex. 3.) The CDC advised that an individual was considered a PUI if the
person had (1) fever and symptoms of lower respiratory illness (e.g., cough, difficulty
breathing), and (2) had traveled from Wuhan City, China in the 14 days before symptom
onset, or, had close contact with a person under investigation for COVID-19 while that
person was ill. (Id.) CDC maintained this approach for identifying cases in its February
1, February 10, and February 13, 2020 guidance. (See Dkt. 64-50, Tarling Decl., Ex. 5; Dkt.
64-51, Tarling Decl., Ex. 6; Dkt. 64-36, Nair Decl., Ex. F.)
Beginning January 23, 2020, Carnival Corporation, Defendant’s indirect parent,
issued “Instructional Notices” establishing policy to be adapted and implemented by
each of its cruise lines, including Defendant, to implement CDC guidance and screen
passengers for COVID-19 by asking about travel to China and certain flu-like symptoms.
(Dkt. 64-45, Tarling Decl. ¶ 30; id., Ex. 8.)
On March 11, 2020, WHO declared COVID-19 a pandemic. (Tarling Decl. ¶ 51.)
B. The Hawaii Cruise
On January 28, 2020, 2,580 passengers and 1,092 crew members sailed on a
separate voyage on the Grand Princess from San Francisco to Hawaii (the “Hawaii
Cruise”). (Dkt. 65-4, Lal Decl. ¶ 12, Ex. 11.) When the Hawaii Cruise ended, Defendant’s
Senior Doctor, Dr. Nadia Nair, reported to the CDC that nine passengers and eleven crew
members presented with influenza-like-illnesses (“IL”) during the cruise. (Id.) Dr. Nair
attributed the number of ILI cases to the fact that it was influenza season in California,
but otherwise concluded that none of the individuals who presented to the medical
center during the cruise were PUIs for COVID-19 pursuant to the CDC’s guidance. (Dkt.
64-30, Nair Decl. ¶¶ 9-12; Tarling Decl. ¶¶ 39-40.) At the end of the Hawaii Cruise,
thirty-six passengers and most crew remained on the Grand Princess for the Mexico
Cruise. (Nair Decl. ¶ 12; Tarling Decl. ¶ 46.) According to Defendant, “[n]one of these
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passengers or crew who remained on the Grand Princess . . . met the CDC criteria for
suspected or confirmed cases of COVID-19.” (Nair Decl. ¶ 13; Tarling Decl. ¶¶ 40, 46.)
C. The Mexico Cruise
The Mexico Cruise comprised of 2,562 passengers and 1,108 crew members.
(Lal Decl. ¶ 13, Ex. 12.) Dr. Nair, who also acted as Medical Director on the Mexico
Cruise, reported to the CDC that nine passengers and thirteen members presented
symptoms of ILIs on the Mexico Cruise. (Id.) Pursuant to CDC guidance, there were no
passengers or crew on the Mexico Cruise with suspected or confirmed cases of COVID-
19. (Nair Decl. ¶¶ 7-16; Tarling Delc. ¶¶ 41-43.) On March 4, 2020, CDC issued a “No
Sail and Information Request Order” indicating there were eleven “presumptive positive
cases of COVID-19 among persons who were onboard” the Grand Princess during the
Mexico Cruise. (Lal Decl. ¶ 2, Ex. 1.)
D. The Parties’ Cross Motions for Summary Judgment
The parties filed cross-motions for summary judgment on January 7, 2022.
(Dkt. 64, 65.) Plaintiffs move for summary judgment with respect to their negligence
claim. Defendant moves for summary judgment with respect to Plaintiffs’ negligence
and gross negligence claims.
II. LEGAL STANDARD
Summary judgment is appropriate where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the
initial burden of informing the court of the basis for its motion and of identifying
portions of the pleadings and discovery responses that demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All
reasonable inferences from the evidence must be drawn in favor of the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not
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bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate
that “there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party
opposing the motion, who must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party
“fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” and material facts are those “that might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There
is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
It is not the court’s task “to scour the record in search of a genuine issue of triable
fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel have an obligation to
lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th
Cir. 2001). The court “need not examine the entire file for evidence establishing a
genuine issue of fact, where the evidence is not set forth in the opposition papers with
adequate references so that it could conveniently be found.” Id.
III. DISCUSSION
Plaintiffs contend that Defendant’s negligence caused Plaintiffs to contract
COVID-19 during the Mexico Cruise. The prima facie elements for a maritime negligence
cause of action are defined similarly to the common law. Prince v. Thomas, 25 F. Supp.
2d 1045, 1047 (N.D. Cal. 1997). Thus, to recover for negligence, a plaintiff must show (1)
a duty, (2) a breach of that duty, (3) a causal connection between the offending conduct
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and the resulting injury, i.e., proximate cause, and (4) damages. Morris v. Princess Cruises,
Inc., 236 F.3d 1061, 1070 (9th Cir. 2001).
Although the parties dispute whether Plaintiffs have demonstrated the first,
second, and fourth elements of Plaintiffs’ claim, the parties’ discussion with the court
during oral argument mainly concerned whether Plaintiffs met their burden of proof
with respect to causation. Defendant contends that Plaintiffs have not, and cannot,
establish that Defendant’s purported breach caused Plaintiffs to contract COVID-19 on
the Grand Princess. Particularly fatal to Plaintiffs’ claim, Defendant argues, is the absence
of admissible expert testimony as to medical causation.
The court agrees that certain cases warrant the introduction of expert testimony,
such as when an element of a claim calls for information that is outside an ordinary
person’s common knowledge. See Claar v. Burlington N. R.R., 29 F.3d 499, 504 (9th Cir.
1994) (holding that a plaintiff must proffer admissible expert testimony when special
expertise is necessary for a fact-finder to draw a causal inference); Northrup v. Covidien,
LP, No. EDCV 20-00355 DDP (SPx), 2021 WL 5507217, at *5 (C.D. Cal. Nov. 24, 2021)
(“With respect to negligence claims, courts have . . . concluded that plaintiffs cannot meet
their burden to show a violation of the standard of care, let alone causation, without
expert proof.”); Sanderson v. Int’l Flavors & Fragrances, Inc., 950 F. Supp. 981, 1003 (C.D.
Cal. 1996) (granting summary judgment for defendants because plaintiff presented no
experts that could show medical causation and rejecting plaintiff’s proposal to let a jury
use its “common sense” to infer causation from a temporal relationship between
plaintiff’s exposures and symptoms).
The parties do not dispute the need for expert testimony given the complex nature
of COVID-19, and the fact that symptoms associated with COVID-19 substantially
overlap with symptoms of other diseases, including the common cold, influenza, and
numerous other viral and bacterial infections. (See Dkt. 64-11, Goldmann Report at 9;
Dkt. 78, Pls.’ Reply at 2-3.) Because numerous potential causes account for the symptoms
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of COVID-19, a trier of fact must rely on more than common sense to draw inferences
that rise beyond the speculative level regarding exactly where and when the exposure
occurred, and whether Plaintiffs’ symptoms were the product of COVID-19 or some
other illness. Ultimately, “the alleged mechanisms of causation are beyond the
experience of laypeople,” and thus, Plaintiffs cannot establish causation absent such
expert testimony. Sanderson, 950 F. Supp. at 1003.
Plaintiffs, however, have no expert testimony to support causation. Although
Plaintiffs offer the expert report of Dr. Barry Fox to support their theory of medical
causation, Plaintiffs failed to timely designate their expert witnesses under Federal Rule
of Civil Procedure 26(a). Such experts included the testimony and expert report of Dr.
Fox. Finding that Plaintiffs’ violation was neither substantially justified nor harmless,
this Court denied Plaintiffs’ motion to file the late designation of their expert witnesses.
(Dkt. 85.) Plaintiffs are therefore precluded from using the reports of such experts to
supply evidence in their motion for summary judgment or in opposition to Defendant’s
motion for summary judgment. See Fed. R. Civ. P. 38(c).
Additionally, Plaintiffs appear to believe that the statements in their own
declarations serve as evidence of causation. However, in the absence of expert
testimony, Plaintiffs’ declarations are speculative at best. Plaintiffs contend that their
testimony demonstrates that Plaintiffs more likely than not, contracted COVID-19 on the
Grand Princess as opposed to prior to embarkation. (Plfs. Motion at 21; Opp at 24, 31.)
Plaintiffs state that they “did not come in contact with any persons of Chinese origin
travelling from either Wuhan China or China in general . . . or any person who may have
travelled on International Airlines,” that Plaintiffs only had contact with their family
members and drivers who drove them to the airport, and that Plaintiffs “did not come in
contact with any one who was coughing or had any signs of Influenza or . . . fever.” (See,
e.g., B. Dhillon Decl. ¶¶ 2, 4, 13; Sekhon Decl. ¶¶ 10-13; P. Giannoulis Decl. ¶¶ 10-13.)
However, Plaintiffs’ bare observations lack foundation. As Defendant argues in their
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evidentiary objections to Plaintiffs’ declarations, Plaintiffs “do not explain, and cannot
explain, how Plaintiffs could possibly know that no one they encountered during this
period had recently travelled from China or other international destinations.” (Dkt. 77-2,
Def.’s Objs. to Decls. at 10.) Nor do Plaintiffs explain how they could have known every
point of embarkation and transit routes of every person they encountered while traveling
to their port of departure. (Id.) Because Plaintiffs do not provide a sufficient basis to
conclude that they did not encounter any person with COVID-19 prior to embarkation,
Plaintiffs’ statements are not facts the court may consider on a motion for summary
judgment. See Hawes v. Pac. Gas & Elec. Co., No. EDCV 16-1623-DMG (KK), 2018 WL
5270499, at *4 (C.D. Cal. June 25, 2018).
Plaintiffs further attest that they, along with other Grand Princess crew members,
exhibited ILI-symptoms on the Mexico Cruise, and thus Plaintiffs’ symptoms likely were
the product of COVID-19. Plaintiffs testify that several days into the Mexico Cruise,
Plaintiffs experienced “headaches,” “coughing,” “fatigue,” “sneezing,” “shortness of
breath,” and “fever.” (See Giannoulis Decl. ¶ 23; Sekhon Decl. ¶ 25; B. Dhillon Decl. ¶¶
36-37; R. Dhillon Decl. ¶¶ 24, 26.) Additionally, Plaintiffs observed crew members
“coughing,” “sneezing,” “fatigue[d]” and “feverish.” (See Giannoulis Decl. ¶ 23; Sekhon
Decl. ¶ 18; B. Dhillon Decl. ¶ 19; R. Dhillon Decl. ¶ 7; A. Pampalon Decl. ¶ 22; S. Lal Decl.
¶ 23.)2 Plaintiffs’ testimony constitutes improper lay opinion to the extent they rely on
2 Plaintiffs also contend that crew members assigned to clean their rooms told Plaintiffs
they were sick and were sharing their rooms with individuals who had previously
contracted COVID-19 on a different cruise ship, while other Plaintiffs attest that they
were informed by crew members that certain staff were absent due to illness. (S. Lal.
Decl. ¶ 25; R. Lal. Decl. ¶ 5; R. Pampalon Decl. ¶ 24; A. Pampalon Decl. ¶ 22; B. Dhillon
Decl. ¶ 19; Sekhon Decl. ¶¶ 19, 21.) Such statements are inadmissible hearsay under
Federal Rules of Evidence 801 and 802, and thus do not constitute proper summary
judgment evidence. (Dkt. 72-3; see Fed. R. Civ. P. 56(c).) In any event, even if these
statements were admissible, Plaintiffs run into the same problem as discussed above.
The record is devoid of medical evidence a trier of fact could rely on to discern whether
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such evidence to establish they contracted COVID-19 on the Grand Princess. Plaintiffs are
not qualified experts in the medical field. While their own statements may be used to
establish their own symptoms, to the extent they purport to establish the cause of
Plaintiffs’ injuries or diagnose the illnesses of crew members, their testimony constitutes
inadmissible lay opinion. See Fed. R. Evid. 701. 3
Having reviewed all of the Exhibits and Declarations Plaintiffs filed in support of
their Motion for Summary Judgment and in Opposition to Defendant’s Motion for
Summary Judgment, the court has not identified any other evidence that could be
construed as attempting to establish that Plaintiffs contracted COVID-19 on the Grand
Princess. As such, Plaintiffs have not provided sufficient evidence to create a material
issue of fact regarding causation.
Because Plaintiffs have not met their burden of proof as to the element of
causation, Defendant is entitled to summary judgment with respect to Plaintiffs’
negligence and gross negligence claims.
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any of the crew members had COVID-19, or whether Plaintiffs were exposed to COVID-
19 by these individuals.
3 It also appears that four of the eight Plaintiffs cannot confirm from any test result that
they were positive for COVID-19 or that they obtained a COVID-19 diagnosis from a
medical professional. (See Dkt. 64-1, Mot. at 9.) Instead, those Plaintiffs rely on their own
belief that they contracted COVID-19 on the Grand Princess. (See, e.g., A. Pampalon Decl.
¶¶ 34-37; R. Pampalon Decl. ¶¶ 36-37 (“I believe that I was COVID 19 positive but
recovered over a time frame.”); R. Lal Decl. ¶¶ (“My test results came negative . . . but I
am certain too much time had passed for the positive test to be effective.”); S. Lal Decl. ¶
40 (“Even though I tested negative, I believe that I was COVID 19 positive but recovered
over a time frame.”).) As stated above, Plaintiffs are not qualified to opine on their own
medical diagnosis. For this additional reason, summary judgment is warranted.
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IV. CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is
GRANTED. Plaintiffs’ motion for summary judgment is DENIED.
IT IS SO ORDERED.
Dated: February 18, 2022
___________________________________
DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE