Can WDW or DLR Guests Sue Disney if they contract COVID-19 after a visit?

[UOAP]

I’m still not seeing how this is anything more than a patient saying I have COVID-19 and I went to WDW three weeks ago. I don’t follow your statement that the “patients will do it.” The current patient sure, but how will that patient know who exposed them?

While courts have embraced DNA testing as probative evidence, evidence that relies on the genetic footprint of a virus must still need to be statistically significant. DNA tests are admissible because of the very long odds against two people having identical DNA. It won’t be enough to say that we know this virus‘s DNA was present in central Florida. Unless DNA tests permit tracing the virus in an exposed person back to a specifically identifiable exposure source it will be of little use in litigation. Perhaps that is what you are saying. As I said, I can’t tell.

I think you are also trying to ”respond” to arguments that haven’t necessarily been made. I’ve never taken the position that proving causation from WDW would be impossible or that the science isn’t there. I’ve left open the possibility that, however factually difficult it might be, that someone might be able to prove they were exposed to the virus at WDW. Causation is an interesting topic but it relies heavily on facts and at this point, we are largely speculating about those facts. My primary point was to address the legal issues that exist even if someone could prove exposure at WDW.

I guess I have not been clear enough. The virus changes its DNA (really RNA, but it's basically the same as far as this is concerned) as it infects people over time, so you aren't isolating it to "central Florida" you isolate to a cluster of infected individuals that were all *in the same location at the same time*. I am saying, as a trained epidemiologist and COVID hospitalist studying this disease since December, that this will NOT be a winning defense for Disney because the science IS there. It makes no sense to dispute the science because there will be thousands of experts ready and willing to stand by it. It's not something that Disney will even try to do. They would look like fools if they did. I really don't understand why this the uncontroversial point is being given so much time on this otherwise interesting thread.

ETA (because I really want this to be clear): How do we know they were at Disney and not FunSpot? Because we asked them where they went over the past 2 weeks. If they all have Disney in common, then it was Disney. So we combine contact tracing via questions AND genomics to get a really good picture. And that's just for guests. If CMs start getting sick, OSHA requires employers to report clusters to them. This isn't going to be something that's easy to hide, nor is it in Disney's best interest to hide it. The legal liability issue is an *entirely* different issue.

 

[jcb]

I guess I have not been clear enough. The virus changes its DNA (really RNA, but it's basically the same as far as this is concerned) as it infects people over time, so you aren't isolating it to "central Florida" you isolate to a cluster of infected individuals that were all *in the same location at the same time*. I am saying, as a trained epidemiologist and COVID hospitalist studying this disease since December, that this will NOT be a winning defense for Disney because the science IS there. It makes no sense to dispute the science because there will be thousands of experts ready and willing to stand by it. It's not something that Disney will even try to do. They would look like fools if they did. I really don't understand why this the uncontroversial point is being given so much time on this otherwise interesting thread.

ETA (because I really want this to be clear): How do we know they were at Disney and not FunSpot? Because we asked them where they went over the past 2 weeks. If they all have Disney in common, then it was Disney. So we combine contact tracing via questions AND genomics to get a really good picture. And that's just for guests. If CMs start getting sick, OSHA requires employers to report clusters to them. This isn't going to be something that's easy to hide, nor is it in Disney's best interest to hide it. The legal liability issue is an *entirely* different issue.

Understand, I've never disputed the "science." I will question (among other things) whether the science meets accepted evidentiary standards sufficient to prove causation in a court. As I have tried to convey, that evidentiary discussion is quite complex but generally courts want to see that expert testimony complies with scientific methodology but that is a gross oversimplification.

Fortunately, the authoritative book (Scientific Reference Manual) on the subject is free to download and includes several chapters on how courts go about proving exposure. https://www.fjc.gov/sites/default/files/2015/SciMan3D01.pdf (alas, the most recent edition is 9 years old, and yes, lawyers and judges really do need a chapter called "How Science Works").

There is even a short discussion of non-human DNA testing so I'll repeat the fundamental questions: "In deciding whether the evidence is scientifically sound, it can be important to consider the novelty of the application, the validity of the underlying scientific theory, the validity of any statistical interpretations, and the relevant scientific community to consult in assessing the application."

Perhaps the best explanation of how courts look at epidemiological evidence is the statement that "Epidemiology focuses on the question of general causation (i.e., is the agent capable of causing disease?) rather than that of specific causation (i.e., did it cause disease in a particular individual?)." Perhaps this isn't how Epidemiologists look at their field. I just know that I get no where with a federal judge by contradicting what is said in the Scientific Reference Manual.

I've probably naughtily blurred general and specific. That's my fault. I suspect your point is based on proving general causation while I have been focusing on proving specific causation.

 

[godisney14]

Delete

 

[jcb]

2 points stick out for WDW/DL to protect themselves-

• Taking the reasonable measures they can to reduce spread is a big step. They cannot be expected to completely remove the threat; they must try to significantly reduce the potential for mass spread. Check the legal wording around norovirus on cruises for the limits of accountability once due diligence is met. While not exactly the same, it shares alot and sets some precedent.
• The Covid warning signage needs to convey some people are more at risk than others and list those groups. Without that they run the risk that vulnerable people who get severely or worse sick claim: The park operating with large attendance made them not fully appreciate the increased risk to them as a more vulnerable individual.

Thomas' English Muffins needed to change the packaging to clearly indicate the muffins need to split before toasting. You really need to CYA when it comes to liability in the US. Bigger pockets make bigger targets.

Not sure I agree, legally, the warning signs need to be more specific. Florida says there's no duty to warn if a "danger is known or obvious." Casby v. Flint, 520 So. 2d 281, 282 (Fla. 1988). Sure there may be a duty to warn generally but at what point does the "what cave have you been living in the last six months" principle come into play.

Generally, in Florida, a landowner must timely warn a customer of "latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee." Contardi as Next Friend of B.C. v. Fun Town, LLC, 280 So. 3d 1114, 1116 (Fla. Dist. Ct. App. 2019) ("there is no duty to warn an invitee of an obvious danger).

Perhaps courts will hold this isn't an obvious peril. But for now, I think that anyone who has an at risk condition is not putting themselves in a good position by arguing that, without a specific warning, they were clueless about the risk.

 

[Heather07438]

Not sure I agree, legally, the warning signs need to be more specific. Florida says there's no duty to warn if a "danger is known or obvious." Casby v. Flint, 520 So. 2d 281, 282 (Fla. 1988). Sure there may be a duty to warn generally but at what point does the "what cave have you been living in the last six months" principle come into play.

Generally, in Florida, a landowner must timely warn a customer of "latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee." Contardi as Next Friend of B.C. v. Fun Town, LLC, 280 So. 3d 1114, 1116 (Fla. Dist. Ct. App. 2019) ("there is no duty to warn an invitee of an obvious danger).

Perhaps courts will hold this isn't an obvious peril. But for now, I think that anyone who has an at risk condition is not putting themselves in a good position by arguing that, without a specific warning, they were clueless about the risk.

Yes, I think legally it's something very hard to win against Disney. People and their lawyers will always try to sue though, so the parks will likely do whatever they can to avoid issues while also thinking about it from a PR perspective. Legally and PR-wise they'll try to maintain good operations that help reduce transmission. A more descriptive sign would add an extra level of protection against suits but probably a bad move PR-wise. I just see the writing on the wall for people to grasp at whatever they can when they need something to blame.

My hope is laws are adjusted toward affording leniency to businesses in an effort to balance risk with life moving forward. A business should only be held to do what it reasonably can to limit transmission during their operations and after that be relieved of liability. Could it be included in the orders around re-opening? If it's not somehow addressed then we might see courts burdened with virus related cases over the next year. Even weak cases will be a waste of money and resources if it can be proactively eliminated and it'd stink to see judgements have wildly inconsistent outcomes depending on which way the wind was blowing and where.

 

[pjredhead]

How can a person prove they didn't have the COVID before they went to Disney?

 

[creativeamanda]

I think there are four questions here:

Can they sue?--Sure, if you can pay the retainer fee (or an attorney decides to take his fee when he wins the case. Disclaimer--this likely won't be possible unless the attorney thinks he/she can win).

Will they sue?--Almost definitely

Will they win?--It depends. Every case has enough nuance to it that one case may be winnable where another with almost the exact scenario with one exception is not winnable.

Should they sue?--No. At some point we have to realize that when we go out, we carry the chance of something bad happening.

 

[TheMaxRebo]

How can a person prove they didn't have the COVID before they went to Disney?

If there is sufficient testing they could get tested before they go

 

[hertamaniac]

Testing can show a negative on the timestamp of test, yet still be positive even later in the same day right?

 

[jcb]

Testing can show a negative on the timestamp of test, yet still be positive even later in the same day right?

Some tests also return false negatives. https://www.fda.gov/news-events/pre...ossible-accuracy-concerns-abbott-id-now-point

The simple answer to @pjredhead's question is that this is a fact that will have to be resolved in the litigation. When a guest sues WDW, WDW's personal injury lawyers obtain a significant amount of information. For example, when Alice Pacheco, sued WDW because she "tripped and fell over a raised brick in the sidewalk" at the Grand Floridian, WDW's lawyers asked her to produce 10 years worth of medical records, prescription records, records of all kinds showing she lost earnings, psychiatric records, all photographs depicting her in the 24 hours before the accident, all credit card receipts for "any expenditures" during her WDW stay, and the "shoes worm by you at the time of the incident." That was a "simple" trip and fall lawsuit.

So, odds are pretty strong that, if WDW is sued for an alleged COVID-19 exposure, its attorneys will figure out whether the person might have been exposed to the virus or had contracted the virus before coming to WDW.

 

[jcb]

CNBC has tepidly waded into the shark infested COVID-19 litigation waters. The article recounts statements by Barry Kantrowitz, partner at Kantrowitz, Goldhamer & Graifman, a law firm in New York:

In the case of coronavirus, a person would have to prove that safety measures weren’t being followed by a company. If an employee buckling patrons into a ride at a theme park, for example, was visibly sick, coughing and had a fever, but his manager didn’t send him home, then maybe a case could be brought, Kantrowitz said.​

​

“When places are held responsible, it’s because they are negligent,” he said. “They haven’t acted reasonably under the circumstances.”​

https://www.cnbc.com/2020/05/29/how...-to-protect-against-coronavirus-lawsuits.html

 

[hertamaniac]

Some tests also return false negatives. https://www.fda.gov/news-events/pre...ossible-accuracy-concerns-abbott-id-now-point

The link above is for the Abbott testing unit. As I understand it, there are various testing machines (e.g., Quidel, Thermo Fischer, Roche) with perhaps different levels of accuracy. https://ir.quidel.com/news/news-rel...etection-of-COVID-19-Without-Extraction-Step/

So therein lies another variable of proof for testing positive/negative. I am thinking a guest might take a position that they tested negative prior to WDW on machine X on date Y. And then on machine A after visiting WDW on date B, they tested positive.

 

[brich330]

Better question: Why ask something like that? I’m an adult, and I realize the choices I make may have consequences. I wouldn’t blame Disney if I got sick because I chose to be in their parks. That’s like blaming McDonald’s for spilling a hot cup of coffee on yourself. That’s what’s wrong with “a lot” of people today. If you’re an adult, it’s your responsibility to take care of yourself. If you’re a parent, it’s your responsibility to make the right choices to take care of your children. Sorry, I know that’s not a constructive answer, but it is the truth.

 

[TheMaxRebo]

Testing can show a negative on the timestamp of test, yet still be positive even later in the same day right?

Sort of hard to prove a negative but I would think if you were trying to sue Disney you would pull together anything that could help your case and a negative test would at least help - then combined with other things (not having been at other locations that it could be traced to, symptons starting the appropriate time after being at Disney, etc)

I don't think they would win anyway

 

[TheMaxRebo]

Better question: Why ask something like that? I’m an adult, and I realize the choices I make may have consequences. I wouldn’t blame Disney if I got sick because I chose to be in their parks. That’s like blaming McDonald’s for spilling a hot cup of coffee on yourself. That’s what’s wrong with “a lot” of people today. If you’re an adult, it’s your responsibility to take care of yourself. If you’re a parent, it’s your responsibility to make the right choices to take care of your children. Sorry, I know that’s not a constructive answer, but it is the truth.

Except that is a bad example as if you look at the details of that case McDonald's was liable - the coffee was being served way too hot and they were warned multiple times, acknowledged it, and actively chose not to change anything

So in this case it would be like Disney being told of practices they should practice (social distancing, etc), awknowledging that, then actively not do anything about it, and still not warn people

 

[hertamaniac]

Sort of hard to prove a negative but I would think if you were trying to sue Disney you would pull together anything that could help your case and a negative test would at least help - then combined with other things (not having been at other locations that it could be traced to, symptons starting the appropriate time after being at Disney, etc)

But the question I am posing is if there is a discrepancy amongst the testing methods/machines then how could you reliably prove negative/positive for either the plaintiff or defendant?

 

[TheMaxRebo]

But the question I am posing is if there is a discrepancy amongst the testing methods/machines then how could you reliably prove negative/positive for either the plaintiff or defendant?

I don't think you could

I would just see one side using it as part of their argument, not on its own. More like "because of reasons A, B, C, D, and E it is reasonable to assume that it was WDW where my client contracted Covid-19"

 

[jcb]

But the question I am posing is if there is a discrepancy amongst the testing methods/machines then how could you reliably prove negative/positive for either the plaintiff or defendant?

Proving you have a specific virus, where you might have been exposed to it enough to cause the symptoms pretty much demands expert testimony. Non-experts ("lay" witnesses) can describe their symptoms and where they have been that might have exposed them to the virus but to provide competent proof of causation, it takes an expert to say that the symptoms were caused by a specific exposure and/or led to a specific disease. As we debated, proving causation in this instance requires excluding other potential exposures. So, we are already very far into requiring expert testimony anyway. We can just add test discrepancies to the list of subjects Experts would be required to testify about.

 

[hertamaniac]

Proving you have a specific virus, where you might have been exposed to it enough to cause the symptoms pretty much demands expert testimony. Non-experts ("lay" witnesses) can describe their symptoms and where they have been that might have exposed them to the virus but to provide competent proof of causation, it takes an expert to say that the symptoms were caused by a specific exposure and/or led to a specific disease. As we debated, proving causation in this instance requires excluding other potential exposures. So, we are already very far into requiring expert testimony anyway. We can just add test discrepancies to the list of subjects Experts would be required to testify about.

A guest that holistically stays on-site for 14+ days, but on the 15th day exhibits symptoms of the virus. Would this fall under excluding other potential exposures?

 

[ToddyLu]

I am so proud of myself for actually following along and understanding 68% of what y'all are talking about. Discussions like this are always informative and entertaining at some level. If I get COVID-19, I want to get it at Disney....much like the allergies I get every May trip and the stomach ache every October trip. I don't sue because it was so worth not getting those at home.