No COVID-19, No Emotional Distress Claim

• Pages: 23-24
• Date: 01 July 2022
• Author: Andrew K. Robertson
• Subject Matter: Derecho Civil

debt-collection lawsuits and sought an

evidentiary hearing to assess whether

the jurors harbored biases against cor-

porate entities.

The district court denied the motion,

but the Eleventh Circuit Court of Appeals

reversed, holding that a court “must” hold

an evidentiary hearing when presented

with “incontrovertible” evidence of juror

dishonesty. ABA Litigation Section lead-

ers view the decision as sound, but cau-

tion that requiring an evidentiary hearing

for juror dishonesty on any subject,

regardless of materiality, could invite

post-trial challenges and upset the f‌inal-

ity of verdicts.

Two plaintis sued a transportation

company for negligence after a bus

owned by the company struck their

vehicle. The defendant stipulated to

liability, and the jury returned a verdict

of $7.4 million in the damages-only trial.

After trial, the defendant learned

that two members of the jury had lied

about their prior experiences in civil

lawsuits. Although both jurors had

stated that they had not “ever been

a party to lawsuit,” both had been

involved in numerous debt-collection

cases. The defendant moved for a new

trial or, alternatively, an evidentiary

hearing to examine the jurors about

whether their prior experiences had

rendered them biased.

The U.S. District Court for the

Southern District of Florida denied the

motion, holding that even if the jurors

had told the truth about their prior law-

suits, the mere fact of those lawsuits

would not suce to challenge them

for cause and, thus, taking evidence on

the issue was unnecessary. The defen-

dant appealed, and the Eleventh Circuit

reversed. Although noting that “[t]here

is no per se rule that requires a district

court to investigate all claims of juror

misconduct,” the court of appeals nev-

ertheless held that the district court had

abused its discretion by failing to hold

an evidentiary hearing given the “clear,

strong, substantial and incontrovertible

evidence” that the jurors had lied.

Litigation Section leaders observe

that a key basis for the Eleventh

Circuit’s decision was the defendant’s

lack of opportunity to explore the

issue of bias. “The important part was

that the defense lawyers never had

an opportunity to question the jurors

and make the case for bias,” observes

Kenneth M. Klemm, cochair of the

Section’s Trial Evidence Committee.

“It’s something of a jump simply to

assume that the jurors’ prior experi-

ences would not leave them biased, and

allowing the defense lawyers to exam-

ine the jurors could have resulted in a

very dierent perception by the trial

court,” notes Klemm.

Joshua F. Kahn, cochair of the

Section’s Subcommittee on Multi-

District Litigation and Class Procedures

Practice of the Mass Torts Litigation

Committee, concurs. “The fact that the

jurors answered the questions incor-

rectly doesn’t necessarily mean they

were not impartial. But that’s exactly

what needs to be explored. Without

an evidentiary hearing, the defendant’s

hands were basically tied in its ability

to make the case for a new trial,” adds

Kahn.

Section leaders also noted, however,

that in requiring trial courts to inves-

tigate juror dishonesty, the Eleventh

Circuit did not expressly limit its hold-

ing to misrepresentations on any par-

ticular subject. “There’s something

fundamentally unsettling about a juror

lying,” opines Blanca Fromm Young,

cochair of the Section’s Trial Practice

Committee, “but it’s kind of surpris-

ing that the Eleventh Circuit’s standard

didn’t include a materiality require-

ment as to the juror’s false statement.”

Without a materiality standard, Young

continues, “lawyers who don’t like the

verdict are going to go out of their way

to f‌ind evidence that jurors may have

lied. That’s a tactic that losing parties

will now have.”

No COVID-19, No

Emotional Distress

Claim

By Andrew K. Rob ertson, Litigation

News Contributing Editor

Fear of contracting COVID-19, without

more, is insucient to state a claim for

negligent inf‌liction of emotional dis-

tress, according to one federal court.

In Weissberger et al. v. Princess Cruise

Lines, the court held that permitting

fear-based emotional distress claims

would lead to “bizarre results” and

unpredictable and unlimited liability.

ABA Litigation Section leaders believe

that the plaintis may have had a viable

claim with better facts but that the

court expressed legitimate public pol-

icy concerns.

The Grand Princess cruise ship

departed from San Francisco for Hawaii.

Onboard were 62 passengers continuing

from the ship’s prior voyage to Mexico.

While en route to Hawaii, the cruise sta

informed those passengers that they had

potentially been exposed to COVID-19,

as two persons from the earlier leg of

their trip had COVID-19 symptoms.

The plaintis sued the cruise line for

negligence and gross negligence in the

U.S. District Court for the Central District

of California, alleging the cruise line

breached its duty to keep passengers

safe by failing to properly screen passen-

gers or warn them of possible exposure

to COVID-19. Though the plaintis did

not contract the virus or exhibit any of

its symptoms, they alleged that they had

suered emotional distress from fear of

becoming infected.

Because of the absence of alleged

physical injury, the district court con-

strued plaintis’ negligence claim as

one for negligent inf‌liction of emotional

distress (NIED), under which a plain-

ti must either (1) “sustain a physi-

cal impact as a result of a defendant’s

negligent conduct” or (2) be “placed in

immediate risk of physical harm from

that conduct.”

The court dismissed the complaint.

It concluded that the plaintis failed to

satisfy the zone of danger test because

their claim could not be “based solely

on their proximity to individuals with

COVID-19 and resulting fear of contract-

ing the disease.” The court relied on the

U.S. Supreme Court’s ruling in Metro-

North Commute Railroad Co. v. Buckley,

which held that a plainti must exhibit

symptoms of the feared disease to

recover for NIED, and that “exposure...

to a substance that poses some risk of

fear of future disease” alone did not con-

stitute a “physical impact.” Because the

plaintis had no COVID-19 symptoms,

they did not satisfy the test’s f‌irst prong.

The district court also declined to

extend the second prong to disease-

based emotional distress claims. It

observed that under the plaintis’

interpretation, “it would be possible to

sneak in through the back door what

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