Tyson argues federal orders eliminate liability in COVID-19 suits
Tyson's move to assert federal preemption could be a critical defense for companies facing COVID-19-related negligence claims.
Ravaged with COVID-19 infections at its meat plants, Tyson Foods Inc. is turning to federal preemption to wipe out negligence lawsuits brought by dozens of employees and their families who got sick from the coronavirus.
In motions to dismiss the lawsuits or remove them to federal courts, Tyson is turning to the federal government’s directives during the pandemic to keep plants operating, including an April 28 executive order from President Donald Trump, as well as two regulatory laws: the Federal Meat Inspection Act and the Poultry Products Inspection Act. While both are specific to the meatpacking industry, Tyson’s move to assert federal preemption could be a critical defense for companies facing claims that their negligence caused individuals to get the coronavirus — at least until Congress passes any potential legal immunity provisions as part of the $908 billion COVID-19 relief bill.
A tricky argument
So far, judges have yet to rule in the Tyson cases. They have, however, rejected federal preemption arguments raised by nursing homes in attempting to remove several COVID-19 negligence cases.
Like nursing homes, Tyson faces numerous challenges in raising a federal preemption defense, said Christopher Robinette, of Widener University’s Commonwealth Law School.
“A defendant is going to have to find a statute specific to his industry that it can claim that Congress intended to preempt state law. That’s very challenging,” he said. “There is a trend in the direction of pro-preemption, and I do think the [U.S.] Supreme Court composition could shake things up and be more preemption, but it is a challenging argument to make for a defendant.”
Tyson faces lawsuits brought on behalf of dozens of employees who either got sick or died from COVID-19. Perkins Coie’s Christopher Coleman, in Phoenix, and Mary Gaston, in Seattle, are representing Tyson in lawsuits brought in the early months of the pandemic that involve two Iowa plants and three in Texas.
Tyson issued a statement for this story: “We’re saddened by the loss of any Tyson team member and sympathize with their families. Our top priority is the health and safety of our workers, and we’ve implemented a host of protective measures at our facilities that meet or exceed CDC and OSHA guidance for preventing COVID-19.”
This month, Tyson said it had invested $540 million in protective measures such as temperature scanners, social distancing monitoring, health clinics and regular testing.
“We’re using testing as a tool and estimate more than half of our U.S. workforce has been tested for COVID-19,” the statement continued. “The company is currently testing thousands of workers per week as part of our industry-leading monitoring strategy. In addition to testing those with symptoms or who have been in close contact with someone who has the virus, we’re also proactively seeking to find the virus by testing workers who have no symptoms. Currently, less than 1% of our U.S. workforce has active COVID-19.”
Turning to federal law
Early on in the pandemic, the meatpacking industry received special protections from Trump, whose executive order fell under the federal Defense Production Act to protect the nation’s critical infrastructure.
Lawsuits allege that Tyson refused to provide workers with masks or other personal protective equipment, requiring them to work without social distancing. At least 7,000 Tyson employees have contracted COVID-19, and 20 have died, the suits say.
Two cases involving a plant in Waterloo, Iowa, raised alarming allegations that supervisors instructed interpreters to tell non-English speaking workers “everything is fine” and forbade them from discussing COVID-19. They also said the plant manager organized a cash betting pool on how many employees would get COVID-19. A senior manager at the plant also allegedly told a supervisor, who was on his way to get tested, to return to work, adding, “we all have symptoms — you have a job to do,” according to one complaint.
Tom Frerichs, of Frerichs Law Office in Waterloo, who filed the Waterloo lawsuits, did not respond to a request for comment.
In a statement last month, Tyson CEO Dean Banks said the company had “suspended, without pay, the individuals allegedly involved” in the allegations involving the Waterloo plant and retained Covington & Burling’s Eric Holder, former U.S. attorney general, to conduct an independent investigation.
In both Waterloo suits, which involve pork plants, Tyson has argued in court that the federal government’s directives, including Trump’s order, meant the company was acting “at the direction of a federal officer.” Tyson also cited the Federal Meat Inspection Act, under which the U.S. Department of Agriculture regulates conditions in meat plants, in arguing that federal law preempted claims, such as negligence, brought under state law.
Tyson also is arguing against remanding the cases, which are pending in the Northern District of Iowa.
“Here, Tyson was acting at the direction of federal officers in a time of emergency to provide the food security that the government desired,” Tyson’s lawyers wrote in court documents last month opposing remand of one case.
In an amicus brief supporting remand in one of the Waterloo cases, Public Citizen Litigation Group said Tyson’s citation of Trump’s executive order could “nullify a range of state and local protections for workers and consumers, leaving them with no avenue for seeking a remedy for injuries caused by wrongdoing.”
Public Citizen attorney Adam Pulver also said it is not clear Congress intended to protect meatpacking plants from tort liability involving communicable diseases from worker to worker when it passed the Federal Meat Inspection Act.
That’s one reason why corporations are lobbying Congress to insert liability shields into the COVID-19 relief bill, he said.
“At the same time, they’re lobbying Congress, and, in the relief bill now, whether there should be explicit preemption,” Pulver said. “They’re calling it a liability waiver, but that’s what it would do: companies would not be held liable for workers contracting COVID in facilities. That’s not the law yet.”
In Texas, Tyson has cited both the Federal Meat Inspection Act and the Poultry Products Inspection Act in attempting to remove pending suits. Houston’s Arnold & Itkin has filed the cases, which involve two poultry plants in Center and Carthage and a meat processing facility in Amarillo.
Caj Boatright, an attorney at Arnold & Itkin in the cases, declined to comment.
“Meatpacking plants have become hotbeds for COVID-19 inspections because of their lack of safety measures to protect employees from contracting COVID-19,” he wrote in opposing dismissal of the Amarillo case. “Although Tyson argues to the contrary, President Trump’s order neither mandated nor forgave Tyson’s conduct that is at issue in this suit.”
Although judges have not ruled on Tyson’s dismissal motions, they have in cases against nursing homes brought by the family members of residents who died of COVID-19. In those cases, the defendants have cited the Public Readiness and Emergency Preparedness Act, which provides immunity for countermeasures used by healthcare professionals during emergencies.
At least four federal judges in New Jersey, Kansas, Pennsylvania and California, have ruled against the nursing homes, granting remand of the cases to state courts.
“The allegations are ‘you didn’t take enough steps to keep us from getting COVID.’ Courts are looking at that, saying that’s not what the PREP Act had in mind,” Robinette said. “Basically, what the PREP Act is talking about is certain drugs, biological products or devices — for instance, once a vaccine has been developed. But the suits are alleging things like your failures to do certain things have led to us getting COVID.”
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