Susan Dorety filed a complaint as an individual and on behalf of the estate of Michael Dorety against Princess Cruise Lines (“defendant”), on April 15, 2020, in the United States District Court for the Central District of California.[i] The complaint alleged two causes of action: (1) negligence and (2) gross negligence. Plaintiff sought damages of more than one million dollars.[ii] On November 12, 2021, the Honorable Judge Klausner dismissed the case without prejudice to amend by December 3, 2021 and vacated the November 16, 2021 trial date. On August 15, 2023, plaintiff urged the Ninth Circuit to revive her case against defendant.[iii]

Factual Background

Susan and Michael Dorety boarded the Grand Princess cruise ship (“Princess”) on February 21, 2020, out of San Francisco, California. The ship was bound for Hawaii. After almost two weeks, the Princess docked in Oakland, California. Once docked, Michael Dorety developed symptoms of COVID-19.[iv] Plaintiff alleged she spent two days trying to get Princess employees to let her husband off the ship so he could get medical attention. After seeing the CDC medical personnel on the dock, Mr. Dorety was immediately taken to the hospital, where he tested positive for COVID-19 and died shortly thereafter.[v]

Procedural Background

Defendant filed a motion to dismiss the case stating (1) plaintiff has not alleged sufficient facts to establish standing to bring a wrongful death claim; (2) plaintiff has failed to state a claim for negligence in her individual capacity; and (3) the first amended complaint is an impermissible shotgun pleading.[vi] The court granted the defendant’s motion regarding the first claim, which was dismissed without prejudice so plaintiff could remedy the deficiency. Since plaintiff’s complaint was already dismissed without prejudice on other grounds, plaintiff’s other two claims did not need to be dismissed. The key issue here was whether the Death on the High Seas Act (“DOSHA”) applies. Since the plaintiff’s complaint did not allege whether the ship was located on the high seas or in territorial waters when Mr. Doherty contracted COVID-19, the Court could not determine whether the DOSHA applied. [vii]

DOSHA provides that “[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.”[viii] Plaintiff argued DOSHA was inapplicable because all the negligent and wrongful acts causing injury to Mr. Dorety occurred while the Princess was in California waters. However, defendant asserted the court should not consider where Mr. Dorety died but rather where he contracted COVID-19. The court stated that any amended complaint must specify where the Princess was “on the high seas more than three nautical miles from the United States when Mr. Doherty contracted COVID-19.”[ix]

In April 2022, the court dismissed the cause with prejudice because plaintiff failed to file an amended complaint by December 3, 2021, as directed in the November 12, 2021 order.

Plaintiff’s Appeal to U.S. Circuit Court

Plaintiff appealed the case to the Ninth Circuit Court of Appeals on April 13, 2022. The issue before the appellate court was whether Michael Dorety contracted COVID-19 within three miles of the U.S. shore or on the high seas, because if DOSHA applied, his widow would not be able to seek the monetary damages available under her state law negligence claims, and she would receive a bench trial, not one before a jury, according to court filings.[x] Plaintiff argued the lower court wrongly determined that Mr. Dorety was not exposed to COVID-19 while on U.S. waters, and plaintiff’s state claims were preempted by the federal Death on the High Seas Act. [xi]

The appellate court’s task is to determine whether or not the law was applied correctly in the trial court.[xii] Judge Klausner determined Mr. Dorety contracted the virus after his February 28, 2020 ride on the Princess tender boat. This determination was based on when Mr. Dorety developed a fever, which was March 9, 2020, and the virus’ five-to-six-day incubation period. [xiii] Thus, Mr. Dorety would have contracted COVID-19 after his February 28, 2020 ride on the Princess tender boat. U.S. Circuit Judge Morgan Christen stated it was difficult for the court to decide whether Judge Klausner’s findings were “clearly erroneous.” [xiv]

The court was challenged with determining when to start the clock on the incubation period. Mr. Dorety’s loss of appetite was not just a symptom of COVID-19. Defendant had the burden of proving Mr. Dorety’s first symptoms were related to anything other than COVID-19.[xv] Defense’s expert addressed this before the lower court at great length and did so again in response to U.S. Circuit Judge Wardlaw. Defense counsel reiterated its expert thought it was likely Mr. Dorety contracted the virus on March 3, 2020, and at that time, the vessel would have been on the high seas.[xvi]

Plaintiff’s counsel stated there was testimony before the lower court that Mr. Doherty was exposed to six people with COVID-19 on the enclosed tender at the exact time they were in U.S. waters, but defense did not present “‘one person that Michael Dorety got exposed to COVID with, who he stood next to, who he had dinner with.’”[xvii] Plaintiff’s brief to the court contended defendant advocated for the application of DOSHA because it does not allow for damages for loss of care, comfort, and companionship.[xviii]

Take Away

New lawsuits relating to COVID-19 are popping up every day. Suits against cruise lines create a unique challenge for plaintiffs, defendants, and the court in determining where and when the virus was contracted. The location the virus was contracted decides whether DOSHA applies, which is essential as it could limit the recovery for plaintiffs.

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Sources

[i] Comp. ¶ 1 Susan Dorety Individually and On Behalf of the Estate of Michael Dorety v. Princess Cruise Lines, LTD.

[ii] Comp. ¶ 37 Dorety v. Princess Cruise Lines.

[iii] Bonnie Eslinger, Princess Cruises Must Face Widow’s Virus Suit, 9th Circ. Law360 (2023), https://www.law360.com/california/articles/1711347/princess-cruises-must-face-widow-s-virus-suit-9th-circ-told.

[iv] Comp. ¶ 13 Dorety v. Princess Cruise Lines.

[v] Comp. ¶ 15-16 Dorety v. Princess Cruise Lines.

[vi] Dorety v. Princess Cruise Lines Ltd., No. 2:20-CV-03507-RGK-SK, at *3 (C.D. Cal. Sept. 17, 2020)

[vii] Id.

[viii] 46 U.S.C.A. § 30302

[ix] Dorety v. Princess Cruise Lines Ltd., No. 2:20-CV-03507-RGK-SK, 2020.

[x] Bonnie Eslinger, Princess Cruises Must Face Widow’s Virus Suit, 9th Circ. Law360 (2023).

[xi] Bonnie Eslinger, Princess Cruises Must Face Widow’s Virus Suit, 9th Circ. Law360 (2023).

[xii] Court Role and Structure, United States Courts, https://www.uscourts.gov/about-federal-courts/court-role-and-structure.

[xiii] Bonnie Eslinger, Princess Cruises Must Face Widow’s Virus Suit, 9th Circ. Law360 (2023).

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id.